
    Yoemans vs. Bird et al.
    
    Where a constable made an entry of levy on certain personalty, but did not seize it or take any forthcoming bond for it, and the property was not at the place of sale when the constable pretended to sell it, the sale was illegal, and the person bidding it off got no title thereto.
    April 27, 1888.
    Levy and sale. Constables. Before Judge Hines. Emanuel, superior court. November term, 1887.
    Jane E. Bird died leaving certain property and no debts. There was no administration on her estate. Milton Bird 'was one of her heirs and entitled to one-sixth interest in the property, among which was the property described in the declaration in this case. The defendants, two of the children of deceased, by consent of the heirs (all being of age), managed the estate and sold the property to different parties and gave to Milton Bird what he owed the estate for his share. Prior to the death of Jane E., a judgment was obtained against Milton, and after her death it was levied on his one-sixth interest. No property ever was seized by the constable or taken to the place of sale or delivered to the plaintiff, all of it being personalty, bedding, etc. Part of it remained in the house until sold hy the managers of the estate, and the cattle and other stock were running at large. At the constable’s sale the plaintiff was the purchaser, and without his consent the managers of Mrs. Bird’s estate afterwards made the sale above stated, with knowledge at the time of their sale of the sale made to plaintiff.
    The plaintiff* was nonsuited, the court holding that a distributive share in an estate cannot be sold under a fi. fa. against the distributee until the share is turned over to him, and that there was no sale because there was no seizure. The plaintiff* excepted.
    Williams & Brannen, by Harrison & Peeples, for plaintiff*.
    No appearance for defendants.
   Simmons, Justice.

Under the facts reported in this case, the court did not err in granting the nonsuit complained of. While the constable made an entry of a levy upon the fi. fa., the facts show that the cattle, sheep and other personal property were never seized by the constable, nor any forthcoming bond given for them; nor were they at the place of sale at the time the constable pretended to sell them. There being no seizure, and the property not being present at the time of the sale, it was an illegal sale, and the person bidding it off' got no title thereto, and therefore cannot recover in an action of trover. The court did right in awarding the nonsuit.

Judgment affirmed.  