We have no hesitation whatever in reversing the judgment in this case, but by the conduct of the parties some complications are presented which require examination and explanation from this court.
The property in controversy seems to be a valuable tract of land which belonged to the estate of B. H. Smith, who made his last will about the month of April, 1861. He appointed W. J. Smith executor of his will, providing for the payment of Ms debts, and devising the residue of his property to certain of his relatives, among whom are the parties to this suit.
The will was probated, and an inventory of the estate .returned ; which being done, the will by its terms withdrew the estate from the further control of the probate court.
*267At the time of his death the testator was jointly bound* with others in a debt to one Jordan, by note. Jordan-transferred the note to Earle, who brought suit against all the parties.
B. H. Smith died pending the' suit, and Earle dismissed as to him, taking a judgment against the other defendants; they, however, proving insolvent, Earle revived his suit against W. J. Smith, the executor.
But in the meantime, in 1864, the devisees consenting to the sale, or perhaps constituting W. J. Smith, the executor, their agent for that purpose, he sold the land in controversy to one Durham on a credit of twelve months, taking notes in such amounts as represented the individual shares of the devisees, and retaining the vendor’s lien-to secure the notes.
The notes were delivered to the devisees, and Durham took possession of the land. No deed was made, but a. title bond was given which obligated Smith, the executor,.. to make Durham a deed on full payment of all the notes.
Willie, the minor soil of Mrs. Cross, was entitled to the-proceeds of one of the notes; his mother, acting for him,, brought suit against Durham on this note, and prayed for a foreclosure of the vendor’s lien; she obtained a judgment and decree accordingly, caused the land to be-sold on execution, and she and her husband became the purchasers at a consideration greatly below the actual value of the land, and not even covering the amount of' the note.
The question now presents itself, what did the appellees gain, or what title did they acquire by this sale, as against the devisees under the will of B. H. Smith, or his-creditors 1 The answer is obvious. They sold and bought just what title Durham had, and nothing more; and at-best he had but an inchoate title, which could only be-perfected on payment of the whole of the- purchase-money, which has never been done.
*268This disposes of the pretended title of Mary and P. H. Cross, the appellees.
Let us now look after the title of the appellant, McDonough. He is a purchaser at judicial sale, to whom, under all the circumstances, the maxim caveat emptor must apply.
Under Article 1371, W. H. Smith, being the executor of the independent will of B. H. Smith, could be sued by ••the creditors of the latter, and upon judgment, execution • could run against the assets of the estate in his hands.
But was this land, in any proper sense, still in the hands of the executor % We think not; some four years or more had elapsed, Earle had dismissed his original suit on the Jordan note as to B. H. Smith, had taken a judgment against his co-obligors, and both the executor and devisees might well have supposed that “this debt ■had been extinguished or abandoned when the land was sold in 1864 to Durham.”
But under Article 1373, Paschal’s Digest, the estate of ,B. H. Smith immediately on his death vested in the devisees, and this statute expressly declares that the estate ^remains subject to the payment of debts in the hands of the devisees. But the title under which McDonough, the appellant, claims, comes through a sheriff’s sale of this land, upon a judgment against W. J. Smith, the expeditor.
We are clearly of opinion that the land could in no ■legal sense be treated as assets in the hands of the executor, and the title is not affected by sale upon a judgment .¡against him alone.
The creditor should have pursued the assets in the ■hands of the devisees, who are, in a legal sense, trustees ffor the use of creditors so long as any valid debt of their 'testator remains unpaid.
We do not think that this case is affected by the fact ¡that some of the devisees were minors at the date of the *269sale to Durham; the legal title to the land still remains in them, in that proportion, share and share, by which they take under the will.
We must not be understood in this opinion as setting aside the judgment under which the appellant claims title — that may be valid; and if so, it should be paid in full by the devisees, by which means they will relieve the ■ land from the burdens of the trust.
Durham having failed to pay for the land, and not being entitled to specific performance, the devisees may have his title bond canceled, the land partitioned or sold and the money divided.
Under the view we take of this case, the judgment of' the District Court is reversed and the cause dismissed.
Reversed and dismissed.
Opinion delivered September 8, 1873.
A rehearing was granted.