51 Ark. 361 | Ark. | 1888
The appellee, who was plaintiff in this action of ejectment,, .recovered judgment relying solely upon a sheriff’s execution deed. The appellant, who was the defendant in possession, defended upon the theory that the deed was void and conferred no title upon the plaintiff, and relied also upon title by adverse possession for the statutory period, but the latter feature of the defence passes out of the case for want of a bill of exceptions. The court sustained a demurrer to the paragraph of the answer setting forth the facts which it was claimed avoided the sheriff’s deed. The complaint contained a detailed history of the execution title, and if it stated no cause of action, the demurrer to the answer should have been allowed to reach that defect, and thus ended the controversy in limine, unless the plaintiff could otherwise show a good title. In sustaining the demurrer to the answer, the court, in effect, ruled that the title to the land vested in the plaintiff by virtue of the sheriff’s deed, and that the complaint therefore, stated a cause of action.
The facts as alleged in reference to the plaintiff’s title are as follows: John Gibbons, who was owner in fee of the land in controversy, died leaving an unpaid debt due to one Mc-Laren and another. These creditors sued the administrator of Gibbons’ estate and recovered judgment against him for the amount due them by his intestate. The judgment was recovered in the circuit court in 1883. It was never presented to the probate court for classification, and the administrator was discharged by that court after making his final settlement, without having paid 'anything upon the judgment. After the discharge of the administrator, execution issued upon the judgment against him in his fiduciary capaciity, and was levied upon the land in suit, which according to the allegations of the complaint, was still the property of the estate. It was duly sold by the sheriff and was purchased by the plaintiffs in execution. The certificate of purchase was assigned to the plaintiff in this suit, and after the period allowed for redemption had expired, a deed was executed to him by the sheriff. It does not clearly appear how or from whom the defendant derived his claim of title, but he was in peaceable possession of the lands holding under color of title when the suit was brought. He contends that the sale was absolutely void and that the deed conferred no title upon the plaintiff. The contention of the latter is that the execution was, at most, irregular only; and he relies upon the case of Adamson v. Cummins, as administrator, 10 Ark., 541, to sustain his position. In that case it was determined that the sale of personal property under an execution issued upon a judgment recovered in the circuit court, against an administrator for a debt due by his intestate, was irregular but not void, and that a sale under it conferred title upon an innocent purchaser, notwithstanding the estate was in course of administration at the time of the levy and sale. And the case of Hornor v. Hanks, 22 Ark., 583, where lands of an estate were sold under execution against the administrator, seems to recognize the same principle.
There was no authority to issue execution upon the judgment, the sheriff’s deed is void, and the judgment will bere-versed and the cause remanded with instructions to sustain the demurrer to the complaint.
It is so ordered.