WIER v. DAVIS AND HUMPHRIES, 4 Ala. 442

•GIOLDTHWAITE, J. 1. Two questions grow out of this case; the first is, whether any title was gained by the purchaser under the sale made by the administratrix ? The second is, whether, after such a sale, a creditor can levy an execution on the property in the hands of the purchaser? The condition, rights and duties of an administrator under our statutes, and by the common law are widely different in many respects; but in none more so than those which regard the disposition of the personal property.

By the common law his right to sell this species of property was limited only by his discretion ; and a purchaser from him could only be held responsible when charged with notice of a devastavit. [See most of the cases collected in Colt v. Lanier, 9 Cowan, 321.] Our statutes, however, have interposed a complete bar to the •exercise of any discretion by the administrator, with respect to the manner of disposing of most kinds of personal estate which ■belonged to the intestate.

They, declare that it shall not be lawful for any executor, administrator or guardian, to take the estate at its appraised value, or to dispose of the same at private sale. The sale can only be made after an order of the Orphans’ Court, and then only at public sale. This sale is not to commence before twelve o’clock, nor continue longer than the hour of five in the afternoon, of each day.

All sales are declared to be null and void which may be commenced and held in any other manner. [Digest, 180, §13, 14.] After such an emphatic declaration there is no room to doubt that the Legislature intended such sales should be of no validity whatever; and we cannot perceive there is any particular hardship in providing so strictly against the possibility of collusion between an administrator and a purchaser. The conclusive effect of this legislation on unauthorized sales was very fully considered in the case of Ventris v.

Smith, [10 Peters, 161,] and the Supreme Court of the United States then held, under these identical statutes, that a private and unauthorized sale by an administrator in chief, did not have the effect to defeat the right of a subsequent administrator, ad colligendum. We think it clear, that under these statutes the title of the property may, by proper proceedings, be subjected to the claims of creditors or distributees of the estate; that this admin-istratrix cannot maintain the action, is supposed to be settled by the case of Pistole v. Street, [5 Porter, 64.] 2.

The other question is one of more difficulty, because the possession of this property was certainly adverse to all the .world. It was held by the claimant under a bona fide purchase, not from the administratrix, but from one purchasing from her. We have already shown that the title of the estate was not divested by the unauthorized sale, but though the title may yet be in the estate, it does not follow that a creditor can subject it to sale under an execution.

We have never understood that an execution against the goods and chattels of any person could; be so used as to transfer a mere title unaccompanied by thei possession. It is obvious that such a rule would be liable to1 abuse from collusive arrangements, by which a person out of possession, and with a doubtful title would substitute another in his place, clothed with the more imposing title of purchaser under a sheriff’s sale. Added to this advantage, the possession itself would be changed by the seizure and transferred to the purchaser.

The relative condition of the parties would be entirely reversed and the unquestioned possession which before was held under a defective title, would be turned into a mere right of action. We apprehend it is well settled that the mere right of action of a defendant in execution to personal property, is not the subject of a levy. [Commonwealth v. Abel, 6 J. J. Marsh. 476; Thomas v.

Thomas, 2 Marsh. 430, and cases there cited.] We have heretofore held that the ower of a mere right of action to personal property, could not transfer this right to another, so as to authorize a suit in the name of the purchaser. [Goodwin v. Lloyd, 8 Porter, 237; Brown v.

Lipscomb, 9 Porter, 472.] The chief objection which can be urged against the rule we have stated as settled, is, that an adverse possession may sometimes be simulated; but a reference to the case last decided will show that the bona fides of the adverse claim is always a question for the decision of the jury, and where this essential ingredient is wanting, the transfer, whether by sale or by execution will be operative. The propriety of the rule cannot be better illustrated than by the facts of this case.

The sale is illegal, and passes no title, but the purchase money is received and appropriated by the administratrix in due course of administration. It is therefore by no means improbable that the plaintiffs in execution have themselves received a portion of the sum derived from the sale.

If suit should be hereafter brought, by a subsequent administrator, to recover this slave, it scarcely admits of question, that in equity, the purchaser would be permited to show the application of the purchase money, in due course of administration; and to charge the same as a trust fund, to be first reimbursed out of the proceeds of the slave. The same equity would doubtless be allowed if these creditors were seeking to charge the slave, by bill in Chancery, instead of an execution.

Neither a subsequent administrator, distributees or creditors, can claim more than to have the slave sold according to law, and its proceeds applied in due course of administration, and if a portion of the proceeds has been applied in advance, their claim exists for the residue only. But if the present judgment is to be supported, none of these just rules can be applied, and the creditors might receive not only the sum raised by the sale of the slave under their execution, but also, a portion of the price paid by the purchaser to the administratrix.

Our conclusion is, that the Circuit Court should have given the second charge requested by the claimant, as it sufficiently placed before the jury the proper question to be decided by them, under the circumstances in proof. The matter to be determined by them was, the bona fide character of the claimant’s possession, under his purchase, and in this aspect it was entirely immaterial whether the administratrix had pursued the requisitions of the statutes in the sale of the slave. Judgment reversed and the cause remanded.