#### Warren *vs*Hall’s Administrator.

Error to the Scott Circuit.

Chancery.

*Case*58.

*Executors.*Heirs. *Execution sales. Frauds.*

Caso stated by reference to 6 *Dana,*150.

*January*21.

*Simas*Simpson

delivered the opinion of the Court.

This case, has been heretofore in this Court, The opinion then given is reported in 6 *Dana,*450. It contains a statement of the facts and proceedings in the cause up to that period. On its return to the Court below, it was again tried, and upon the trial it appeared that two executions had issued at the same time, upon the decree against the executor and heirs of John Hall, deceased. One against the executor alone, the other against the heir. Both executions had been levied on the slaves in controversy, the Sheriff’s sale made under both, and the proceeds of the sale equally apportioned between them, by the officer in his returns.

The Court below decided that the sale of the slaves thus made, was void, and passed no title to Warren, the purchaser. The propriety of that decision is the question now presented for our consideration.

It was decided in the former opinion, that the decree upon which these executions issued was void as to the executor of Hall, for want of jurisdiction in the Court to render a decree against him; but was not void so far as the heir at law was concerned, and that the slaves being in his possession, were subject to be sold under an execution against him as heir, if he held them by a contract with his father, which was fraudulent as to creditors.

*224A decree is renboth heirand ex-the101 executors the decree is void, two executions issue one andmSthMother u?or”StandeXare levied on slaves in possession of the heir not of and the^meeeds execution5 ^n equal j>arts: execution aná t^exec'ao^are void, th©sale, &e. heir, is not netheheirheld the frauduient'transfer from his fa-(.her, the sale is validas to him.

One 0f ^he executions in the hands of the officer, under which the sale was made, must be regarded as a nullity, it having issued upo'n a void decree. But had the decree not been void, the slaves could not have been so^ under the execution against the executor, not being assets in his hands, and therefore, not subiect to sale under an execution against him as executor.

The executions were both for the same demand, and upon the same decree, and for the same amount. Had the decree been valid against both the executor and the . . heir, one execution only should have issued upon it, with directions to the officer to make the amount, first out of esteem the hands of the executor, and then out of that in the hands of the heir. Had one execution only issued on the decree, and a sale of the slaves had been made under it, would it be contended the sale was void and passed no title to the purchaser, because the decree as to the executor was void, and did not, therefore authorize any execution to issue upon it against him? There might be some foundation for this assumption, if the slaves had been assets in the executor’s hands, but . , . ,. , not being assets m his hands, nor liable to the execution against him had it been valid, n'o reason is perceived why the sale thus made, should not pass the title of the slaves to the purchaser, against the heir at law in whose hands they were liable to the execution.

Nor does the fact that two executions issued on the decree instead of one, make, in 'our opinion, any difference in relation to the validity of the sale. The execution against the heir was valid. The slaves were liable under that execution, if A. J. Hall held them as heir. They did not sell for a sum sufficient to pay off the execution against the heir. The sale is not affected by the circumstance that one of the executions under which it was made was void. That execution was against another person, and was improperly- levied on the slaves. The money arising from the sale, should have been entered on the execution against the heir by the officer. The failure, however, to do it, and the unauthorized appropriation of one half of it as a credit on the other' execution, being the mere act of the officer, cannot op-*225■«grate 'to the prejudice of the purchaser, or affect the legality of the sale.

*Robinson*4* *Johnson*for plaintiff; *Woolley*4’ *Kinkead and Duvall*for defendants.

We are, therefore, of opinion, that the sale under the execution against the heir was valid, if the defendant, A. J. Hall was possessed of the slaves under a fraudulent transfer from his father, notwithstanding the joint levy and salé under the execution against the executor, as well as the one against the heir.

Wherefore, the judgment is reversed and cause remanded for a new trial and further proceedings in conformity -with this opinion.