Miller v. Doan, 19 Mo. 650

19 Mo. 650 | Mo. | 1854

Scott, Judge,

delivered the opinion of the court.

Doan, in November, 1844, recovered a judgment against B. M. Lisle in the St. Louis Circuit Court. Shortly after this, Lisle, who resided in Cole county, Missouri, died, after having made a will, whereby he appointed Thomas and Philip Miller his executors. At the time of his death, there was an execution in the hands of the sheriff on the judgment o£ Doan. On the 13th day of December, 1852, an alias execution was issued on the judgment, directed to the sheriff of Cole county. A motion to quash this execution was sustained by the court, and Doan, thereupon, sued out this writ of error.

1. For the. reasons given in the case of Prewitt v. Jewell, 9 Mo. Rep. 732, by Scott, Judge, this court is of the opinion that the lien of a judgment was extinguished by the death of the judgment debtor, prior to the taking effect of the Revised Code of 1845, which expressly preserved such liens.

2. Never, since the first day of May, 1827, has an execution been allowed against a dead man’s estate. The act of 30th December, 1826, prohibited this, and that prohibition has been in force ever since. When this execution issued, there was no lien existing. There was an absolute prohibition against the act, and the court did right in quashing the execution.

The other judges concurring,

the judgment will be affirmed.