#### B. S. BLANTON *vs.*E. G. MORROW.

In order to pass a title to the interest of a remainderman in personal property, sold under execution, it is necessary that the property should be present at the sale.

The sheriff, who has an execution against a remainder-man, has a right to seize the property in possession of the tenant for life and bring it to the place of sale.

The eases of *Hardy*v. Jasper, 3 Dev. 158, *Knight*v. *Leak,*2 Dev. & Bat. 133, and *McDowell*v. *Pearce, 2*Hawks 110, eited and approved.

Appeal from the decree of the Court of Equity of Rutherford County, at the Spring Term 1850, his Honor Judge Caldwell presiding.

Stith Mayes devised and bequeathed certain real and personal estate to his wife for life, and then over to his son, James F. Mayes, and nine other children, equally to be divided among them. A part of the personal estate consisted of fourteen slaves, and, during the life of the widow and while she was in the enjoyment of the property under the will, James F. Mayes sold and assigned all his interest in the slaves and other parts of the estate to E. G. Morrow on the 8th of November 1536. In September 1844, Hiatt McBurney recovered a judgment against the said Morrow, and, in December' 1847, a *fieri facias*was directed and delivered to the sheriff of Cleave-land County, who, on the 13th of March 1838, offered for sale under it “the defendant E. G. Morrow’s interest in the estate of Stith Mayes, consisting of fourteen negroes,” when B. L. Blanton became the purchaser at the price ©f $250. At the time of- the sale no one of the negroes *48was present, but eight of them were in South Carolina or in Rutherford County, and the others were in the possession of different persons in Cleaveland, to whom the} had been hired by the tenant for life; but the sheriff- made known their number correctly, and described them as being “men, women and children.” Mrs. Mayes died in April 184S, and, in August following, a bill was filed by some of the children of Stith Mayes, against the others and against Morrow and Blanton, for a division of the estates, real and personal, or a sale thereof and a distribution of the proceeds. By consent of all parties, a sale was made for the purpose of partition ; and it was agreed by Blan-ton and Morrow, that the question of right, as between themi should be determined.by the Court, upon the facts to be ascertained upon an enquiry. It was accordingly referred to the master to enquire into Blanton’s title, under the purchase from the sheriff, and upon the report the case appeared to be, as above stated. Upon consideration of it, the Court was of opinion, that Blanton’s pur chase was void, and that the title of the share of the slaves continued in Morrow, and decreed that one tenth part of their proceeds, as well as of the other parts of the estate, should be paid to Morrow, but allowed Blanton to appeal.

*J.*6?. *Bynum,*for the plaintiff.

*J. Baxter,*for the defendant.

Ruffin, C. J.

The only question is, as to the effect of the plaintiff’s sale, and upon that the Court concurs with his Honor, that it did not divest the title of Morrow. It is so, beyond doubt, as'to the slaves, which were not in the sheriff’s county ; for the execution did not create a lien-on them, nor affect the debtor’s right to dispose of them.— *Hardy*v. *Jasper,*3 Dev. 158. The cases cited in the argument of *Knight*v. *Leake, 2*Dev. & Bat. 133, and *Mc*
      *49
      *Dowell*v. *Pearce, 2*Hawks 110, shew, that it is the same, with respect to those, which were in the County., For although such a vested interest, as Morrow had in these slaves, is liable to be sold under execution, yet the other cases establish, also, that this forms no exception to the general rule, that personal property, sold under execution, must be present, in order to render the sale valid.

That is all which it is necessary for the Court to say, for the purposes of this cuase. But it seems to be proper, in order to avoid embarrassment to officers and to prevent doubts, as to the proper course lo be p ursued in such cases, that it should be added, that the Court is of opinion, that, from the necessity of the case, the tenant of .the particular estate must submit to the inconvenience of producing the slaves at the day and place of sale, or, if that could not be satisfactorily arranged between the tenant and the sheriff, to the further inconvenience of a seizure by the sheriff for the purposes of securing the property and making the sale. That results from the two propositions, that the remainder or reversion is subject to execution, and that the thing itself, in which such an interest is vested in the debtor, must be present when it is sold. That course, it is believed, has been generally, if not universally, observed. It stands on the same principle, on which the sheriffs seize the share of a tenant in common on a *fieri facias*against him alone. There is, therefore, no error in the decree, and it must be so certified ; and Blanton must pay the costs in this Court.

Fee. Curiam, Ordered and decreed accordingly.