#### James Nesbit *v.*Thomas Taylor, Ex'or. *de son tort*of Stephen Wilson. Same *v.*B. Dayshield's, Ex'or., *de son tort*of Same.

The plaintiff was a creditor of one Stephen Wilson, (deceased.) After the death of Wilson, his wife advertised and sold his personal estate ; at this sale the defendants severally purchased. Taylor bought a horse, for which he subsequently paid, (what the defendant in the other case bought did not appear). The plaintiff had notice of the sale, but made no objection ; the defendants probably knew that no administration had been taken out on the estate. *Held,*that although the acts done by the widow of the deceased,.were such as might have been done by a rightful executor, and the. defendants probably knew there was no administration, yet they might have bought, supposing her to be the executrix of the testator’s will, and were not liable as executors *de son tort.*

A creditor has no right to the property of the deceased, he is merely to be paid out of it; when it is shown that it has been sold by one who had no rightful authority to. sell, that act constitutes the party selling it an *executor de son tort,*and makes him liable to the extent of the funds *thus*received for the creditor’s debt. This is enough for his rights, and he has no right to follow the property into the hands of the *vendee.*

*Before ONE ALL, J., at Spartanburg, Spring Term,*1839.

The report of his honor the presiding judge, is as follows:

“ These were summary processes, tried before me at the last Spring term.. The plaintiff was a creditor of *the late*Stephen Wilson, (deceased,) and attempted in these cases to make the defendants liable as executors *de son tort.*After the death of Stephen Wilson, his wife advertised and sold his personal estate. At that sale the defendants purchased. The defendant Taylor, bought a horse, for which he subsequently paid. What the other defendant bought did not appear, so the case against Taylor was the only ■one in which evidence was given. The plaintiff had notice of the sale and made no objections; the defendants probably knew that there was no administration. I thought, on the proof, that Mrs. *297Wilson was to be considered as executrix from her wrongful acts, and that the defendants were not liable to the creditor. On expressing this opinion, the plaintiff in both cases submitted to a non-suit, with leave to move the Court of Appeals to set it aside.”

The plaintiffs appealed, and now moved this court to reverse the circuit decision, on the grounds:

1. Because the defendants used the property of the deceased without any legal authority to do so, and sold and disposed of the same as their own, which constitutes them executors de son tort.

*2.*Because the purchase of property from the widow, knowing that it belonged to the estate of the deceased, and that she was not the rightful executrix, nor had any other legal authority to sell, expressly with the view of leaving the State — the purchaser afterwards using and disposing of the property, constituted him executor *de son tort.*

3. Because the decision was against law.

Curia, per O’Neaul, J.

The acts done by the widow of the deceased, were such as would usually have been done by a rightful executor. She sold his property at a public sale. The plaintiff, a creditor, was informed of it and made no objection. Under these circumstances, although the defendants probably knew there was no administration, yet they might have bought, supposing her to be the executrix of the testator’s will. For, as was said by judge Huger, in Johnson v. Gaither, in State Reports by Harper, 6, “ a stranger who sees one acting as executor, may presume that there is a will in which he is appointed executor. A stranger is not bound to enquire into an executor’s title; if there be an appearance of it, it is sufficient.” That case is decisive of these, for there the defendant purchased corn belonging to the deceased, from the widow, and it was held not to constitute him an executor de son tort. A creditor has no right to the property of the deceased; he is merely to be paid out of it. When it is shown that it has been sold, that act constitutes the party selling it an executor de son tort, and makes him liable to the extent of the funds thus received, for the creditor’s debt. This is enough for his rights, and he has no right *298to follow the property into the hands of the vendee. If administration be taken out and the administrator sues for the recovery of the property, then unless the vendee could show that his vendor had a perfect legal right to sell the property, the administrator must recover. For then the issue is, is the property still the goods and chattels of the deceased ?

*Henry*& *Bolo,*for the motion.

The motions are dismissed.

Evans, Earle and Butler, Justices, concurred.