33 Miss. 131 | Miss. | 1857
delivered the opinion of the court.
This was a bill in equity, filed by the plaintiff in error, to enjoin certain executions, upon judgments rendered against her as administratrix of her intestate, in behalf of the defendants.
It shows that after the executions were issued, and had been levied upon personal property of the estate, the estate was duly declared insolvent, and the relief sought is, to restrain the sale of the property under the executions, and to bring it into a ratable distribution among all the creditors of the estate, including the plaintiffs, whose executions were enjoined. The defendants moved to dissolve the injunction, which was done accordingly; and the complainant thereupon brings the case here.
The only question for decision is, whether the executions, being levied by seizure of the property in execution before the declaration of insolvency, could be stayed, and the plaintiffs debarred of the right to sell the property in satisfaction of their executions.
It is contended, in behalf of the plaintiff in error, that notwithstanding the levy before the declaration of insolvency, the property was to be distributed among all the creditors ratably, under the provision of the first clause of the 103d section of the Statute of 1821 (Hutch. Dig. 667), and under the spirit of the further provision of the same section, that no “ action or suit should be commenced or sustained against an administrator after the estate be represented insolvent.” Rut we do not consider this view warranted by the statute.
The scope of the first provision is, that upon the declaration of insolvency, all the assets shall be applied ratably to the payment of all the unsatisfied debts; and the extent of the other provision is, that no suit against the administrator shall be instituted after the
The policy of the statute is, that there shall be an equal distribution of the assets to the payment of all the debts of the deceased, whether sued upon or not, at the time of the declaration of insolvency ; and it has been held by this court to include judgments against the administrator, unexecuted when the declaration is made. Parker v. Whiting, 6 How. 358. But it cannot with any reason, be held to extend to cases like the present.
When an execution is levied by the seizure of personal property under it by the sheriff, it is an appropriation of the property to it, and is in law a satisfaction of it. The seizure is the essential act, because it deprives the defendant of his property; and if it be his property and subject to the execution at the time, he is thenceforth discharged of the debt, unless it appear by a sale that the property is insufficient to pay the debt. But the sale is a mere incident, and is like the disposition of the proceeds of the sale. Therefore, by the seizure, the judgment is in law satisfied. Beatty v. Chapline, 2 Harr. & John. 15; 7 Bac. Abr. Title Supersedeas (Gr.); 1 W. Blacks. 57. In view of these well-established principles, it is manifest that the language of the statutes referred to, cannot embrace a case where a plaintiff has actually seized the property of the estate in execution before the declaration of insolvency, much less do their spirit and policy extend to such a case. And in order to justify a conclusion so much in opposition to settled legal principles as the construction contended for, the language of the statutes should be so plain as to render it unavoidable.
The case of Parker v. Whiting, above cited, is relied on by counsel as sustaining the position taken by this bill.
It would appear by the reporter’s statement of the facts of that
Let the decree be affirmed.