McMiller v. Anthony Butler's Administratrix
Texas Supreme Court
Error from Washington. Tried below before the Hon. R. E. B. Baylor. Suit, March 11th, 1854, by Anthony Butler’s Administratrix against James McMiller, to recover a tract of 400 acres of land. Defendant claimed the land by purchase at Sheriff sale as the property of said Butler; and in case he could not retain the land, he prayed a recovery of the price paid by him for it. The levy was made in March, 1849 ; Butler died in April; and the land was sold in May.
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Error from Washington. Tried below before the Hon. R. E. B. Baylor. Suit, March 11th, 1854, by Anthony Butler’s Administratrix against James McMiller, to recover a tract of 400 acres of land. Defendant claimed the land by purchase at Sheriff sale as the property of said Butler; and in case he could not retain the land, he prayed a recovery of the price paid by him for it. The levy was made in March, 1849 ; Butler died in April; and the land was sold in May. The death of Butler was not known in the county where the sale took place, until after the sale. A jury being waived, and the plaintiff…
1Opinion of the Court
Hemphill, Ch. J.
Was the sale, under which the plaintiff in error sets up title, void in consequence of the death of Anthony Butler, the defendant in execution, before the day of sale?
This can scarcely be considered an open question in this Court.
At Common Law, an execution which had issued prior to the death of the defendant might have been enforced by levy and sale after his death. This proceeded on the theory and fiction, that an execution, when issued, was a perfect thing, with certain functions; and, being complete in itself, could not be superseded by the death of plaintiff or defendant,…
2Cited by12 opinions
- Green v. RugelyTexas Supreme Court · 1859
- Patterson v. AllenTexas Supreme Court · 1878
- Low, Administrator v. FeltonTexas Supreme Court · 1892
- Taylor v. SnowTexas Supreme Court · 1877
- Schmidtke v. MillerTexas Supreme Court · 1888
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