
    W. D. Smith et al. vs. The State of Mississippi.
    The personal property of a testator, specially bequeathed by him, is subject to be sold under execution against the executor, issued upon a judgment founded on a debt of the testator, obtained against the executor after the property had passed into the hands of the legatee with the assent of the executor, and had, upon the legatee’s death, passed to his distributees.
    The case of Turner v. Chambers, 10 S. & M. 308, in so far as it undertakes to declare the remedy of a judgment creditor of a deceased person, after distribution of his property, to obtain payment of his debt, to be in equity, decided to be in conflict with Brooks v. Lewis, 1 How. 207; and Vanhouten v. Reilly, 6 S. & M. 440, and not to be law.
    By the act of 1843, Hutch. Code, 224, it is made the duty of the sheriíF “ upon any judgment rendered on a note given for the purchase-money of any of the seminary lands, to levy the execution upon said lands, and sell the same; ” the object of this statute was merely to enable the sheriff to sell under execution the equitable interest of the defendant in such lands ; and it did not, therefore, under execution upon a judgment against a surety alone, upon a note given for the purchase of such lands by the principal, authorize the sale of the lands.
    If, therefore, upon a judgment against such surety alone, the lands thus purchased by the principal are levied on and sold, no title will pass to the purchaser ; the sale will be void, and the whole transaction a nullity ; and the judgment will not be credited by the amount of the bid when made by the state.
    It seems that if the lands of A. be sold under execution against B., the sale itself will be a nullity; and the purchaser will not be bound by his bid.
    On appeal and cross appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.
    William D. Smith, Catharine E. Smith, Susan E. Smith, and Martha D. Smith, allege that they are the heirs at law of Samuel Smith and Mary O. Smith, late of Hinds county, deceased. That Samuel Smith died in 1834, possessed of an estate of land, slaves, and other personal property, and made a will by which, after bequeathing a legacy of $50 to his daughter Margaret, who had married one Hern, he made the following devise: “The balance of the property I may die possessed of, I give and bequeath to my wife Mary O. Smith, for her use, benefit, and disposal for ever, to enable her to bring up, educate, and support our children, which are named as follows.” (Then follow the names.) He appointed Joseph A. McRaven his executor, who probated the will and took upon him the execution of it, and managed the estate as executor until 1837, in which year he delivered the property of the estate to Mary O. Smith, who continued in the enjoyment and possession of it until her death, which occurred in the year 1843. That the slaves mentioned in the record are a portion of the estate bequeathed to Mary O. Smith by the will of her husband. That Samuel Smith at the time of his death was not largely indebted, and had in ready money, which was received by his executor, a sufficient sum to discharge all his debts of every description. That Mary O. Smith died intestate, and the estate since her death has been held by complainant, W. D. Smith, and managed for the joint benefit of himself and co-complainants, three of whom are unmarried minors, his sisters, and the other married and living in Texas. In November, 1833, Samuel Smith bought a tract of land of the commissioner of the seminary fund, lying in Hinds county, and executed three promissory notes, payable to the governor of the state and his successors in office, for the sum of $525.66| each, payable on two and three years after date, with William C. Demoss and Henry K. Moss, his sureties. That the first of said notes was taken up by the substitution of another note. That on the other two notes, suit was instituted in the circuit court of Hinds county against Henry K. Moss, and judgment recovered against him on the 30th day of June, 1845, for the sum of $1814.10. That execution was issued and levied on the land bought by Smith, and for the price of which the notes were in part executed, which land was sold under the execution, and bought by McAfee, commissioner of the seminary fund, on account of said fund, for between $800 and $900, which entitled said execution to a credit for all costs and $859.28 of principal debt, but which has not been credited. Payment of said notes was never demanded of McRaven, the executor of Samuel Smith, by the commissioner of the seminary fund, or any notice given to him of their existence, until the year 1844, when George Work, Esq., without legal authority, instituted suit against McRaven, executor, in Hinds circuit court, on all of said notes, and on the 4th day of May,' 1846, recovered judgment against said executor for the sum of $2810.82. Execution was taken out by George Work upon said judgment, and by his orders levied by the sheriff of Hinds county on certain slaves named, (being part of the estate bequeathed by Samuel Smith to his wife, and which descended to complainants,) in the possession of complainant, W. D. Smith. The sum of $859.2S, for which the land bought by Smith of the commissioner of the seminary fund, was sold, under the execution against Moss, is not credited on the judgment against McRaven, executor, &c. The bill further charges that McRaven, executor, had, at all times after the death of Smith, assets in his hands, independent of the property devised to Mrs. Smith, sufficient to pay and discharge the notes upon which the judgment is founded. That he has not yet settled his account of his administration of said Smith’s estate, and that he still has in his hands a sufficient amount to satisfy said judgment.
    The bill charges further, that said slaves being part of the estate of Samuel Smith, deceased, and bequeathed to his wife Mary, and which descended from her to the complainants, are not subject to said execution. The prayer of the bill is for an injunction against the executive authority of the state, and the commissioner of the state charged with the seminary fund, restraining them from selling said slaves under and by virtue of said judgment, and for general relief.
    The answer of the state does not deny any of the material allegations of the bill, but at the June term, 1847, of the court, a motion to dissolve the injunction on bill and answer, was argued, and it was ordered that the injunction be retained for the sum of $859.25, made by the sale of the land under the execution against Moss, and dissolved as to the residue of the execution. An appeal was prayed by complainants, and also by the attorney-general, for the state.
    
      Guión and Baine, for W. D. Smith et ah,
    Argued the case, and cited Tol. Ex. 311; 6 Dana, 155; 2 Hill, Ch. Rep. 522; Burnley v. Lambert, 1 Wash. 308; 2 Hill, Ch. Rep. 459; lb. 462; 1 Dev. Eq. 337; 1 Dev. Eq. Ca. 437; Lyn v. Vick, 6 Yerg. 42; Sampson v. Bryce, 5 Munf. 175; Scott v. Holliday, lb. 103; Randolph v. Randolph, 3 lb. 99.
    They also reviewed Brooks v. Leiois, 1 How. 207; contended it was not law, and was reversed by Turner v. Chambers, 10 S. & M. 308.
    
      Freeman, attorney-general, for state,
    Considered the first point res adjudicata, under the authority of Brooks v. Lewis, which he did not consider shaken by Turner v. Chambers. He argued, also, that the cross-appeal was well taken; and the whole injunction should be dissolved.
   Mr. Justice Clayton

delivered the opinion of the court.

Two questions are presented by this record. The first is, whether, after the assent of an executor to a legacy, and after the property has passed into the hands of the legatees, it is still subject to an execution against the executor for a debt of the testator.

This point was expressly decided in the case of Brooks v. Lewis, 1 How. 207, and the right of the creditor so to proceed, established.. That settled the construction of our statute on the subject, and it has not since been questioned, to our knowledge, till the present case arose. After so long an acquiescence, we do not feel at liberty to depart from it, even if there were doubts of its original correctness. But there can be no doubt of the liability of all a decedent’s estate to the payment of his debts, and it is not a matter of greát moment, what course is adopted to reach it.

The other question cannot be better explained, than by a brief statement of the facts. 'The debt on which the judgment at law was obtained, arose from a purchase of land by the testator, Smith, from the seminary fund, for which he executed his notes, with H. K. Moss as his surety. After failure in the payment, suit was brought and judgment rendered against Moss alone. Execution issued, which was levied on the land so purchased by Smith, notwithstanding there was no judgment against him. The commissioner of the seminary fund purchased the land at the execution sale; but it is now insisted that the sale was void, and that no credit should be entered on the execution for the amount bid by the commissioner. The chancellor directed a credit to be given for the amount of the bid, and the injunction to be made perpetual to that extent.

In support of the chancellor’s decree, it is urged, that, by the act of 1843, Hutch. Code, 224, it is made the duty of the sheriff, !i upon any judgment rendered on a note, given for the purchase-money of any of the seminary lands, to levy the execution upon said lands, and sell the same; ” and it is insisted that the sheriff but performed this duty in the present sale. The object of that statute was, to enable the sheriff to sell an equitable title under execution at law.

The statute authorizing the sale of the seminary lands, by the auditor, directs, that he shall give a certificate to the purchaser, specifying what lands he had bought, and the amount bid therefor, and that upon payment of the full amount, and the production of the certificate, he shall make full and complete title to said lands.” Hutch. Code, 215. Apart from the statute of 1843, the interest of the purchaser could only be reached by suit in equity; and the whole extent of that statute is, to authorize the sale of the interest under execution at law. But it would be contrary to the first principles of the law, to hold, that the interest or estate of any man can be sold under execution, without judgment against him. Such sale is wholly unauthorized and void. It can pass no title, legal or equitable, to the purchaser. The validity of alii egal proceedings rests upon notice, actual or constructive, to the party whose interest is to be affected. A judgment without notice is void, and a sale under execution not founded upon judgment with notice, must be equally so. It is true, that at sheriff’s sale there is no warranty of title; yet, if there be no judgment, there is no authority to sell, and the whole transaction is a nullity.

The decree must, therefore, be reversed, and the injunction wholly dissolved — so far as the appeal of the state extends — and affirmed as to the other appeal.

Judge Guión filed an elaborate petition for a rehearing; and the court thereupon delivered the following opinion.

Per curiam.

A petition for re-argument has been presented in this case, because the court mistook the law as to the right of a judgment creditor, to levy his execution on the property of the deceased after distribution. The petition is based mainly on the case of Turner v. Chambers, 10 S. & M. 308. It is there stated, that the remedy in such cases is in equity, but there was no such question involved in the case; the point was not presented by the record. That the general doctrine is so, is not denied; but the case of Brooks v. Lewis, 1 How. 207, was directly on the point, and decided on the provisions of the statute. The same question was directly involved also in Vanhouten v. Reily, 6 S. & M. 440, and decided in the same way. Two decisions directly on the question, must outweigh the case of Turner v. Chambers, in which the question was not raised.

The application must therefore be refused.  