United States v. Drennen et al.
book. Besides, it is well settled that if land be levied on in the lifetime of the judgment debtor, the sale may proceed after his death. The levy upon the property places it from that time forward in the custody of the law, for the payment of the judgment, and although the judgment creditor does not thereby become the owner, yet the levy may be said to vest in him an interest, or give him a lien not affected by the death of the judgment debtor. Certainly death does not withdraw it from the custody of the law. Massie v. Long, 2 Ohio Rep. 290; Buckner v. Terrill, Lit. Sci. Cas. 29; Sumner v. Moore, 2 McLean's Rep. 67.[1] Putting the statutes aside, then, here is a case where the property would not be withdrawn from the influence of an execution; and, indeed, the fallacy of the argument is
- ↑ A fieri facias being issued upon a judgment, was levied on land, and the judgment debtor died. Without reviving the judgment by scire facias a venditioni exponas was issued after his death, and the officer under it sold the land thus levied on; and it was held that the sale was valid, and conferred a good title on the purchaser. Taylor v. Doe, 13 How. S.C. Rep. 287. The court said, "We regard the venditioni exponas merely as a continuation and completion of the previous execution, by which the property had been appropriated, and was still in the custody of the law." A sale under execution without revival of the judgment is not absolutely void, but voidable only, and cannot be avoided collaterally. 2 How. 602; 5 Ib. 253; 9 S. & M. 216. A sale made under execution, tested and issued after the death of the defendant therein, and without a revival of the judgment, is voidable, but not void. The sale is good until set aside by a direct proceeding, and cannot be attacked collaterally. Shelton v. Hamilton, 23 Miss.; (1 Cushm.) 496. A sale of lands under a judgment against an executor de bonis testatoris conveys a good title to the purchaser, and the title of the heirs is thereby divested. Worthy v. Hawes, 8 Georgia Rep. 234. The acts of congress, 3d March, 1797, sec. 5, and 2d March, 1799, sec. 65, giving priority to debts due the United States, control all State laws for the distribution of estates of deceased persons. 1 Stat. 515, 676. The law makes no exception in favor of a particular class of creditors, and the priority of the United States does not yield to the claims of any creditors, however high may be the dignity of their debts. United States v. Duncan, 4 McLean, 607. Almost every State or sovereignty makes itself, by its own legislation, a preferred creditor, as to debts that may be due to it. Such was the Roman law, and such is the law of England. Statutes giving the government a priority are presumed to be for the public good, and are for that reason to be liberally construed in favor of the sovereign. 6 Peters, 29; 12 Ib. 134.
