Opinion by Bennett T. Logan was living at the date of the rendition of the judgment and issuance of the execution, but was dead when the sheriff’s sale was made at which Williams purchased the land in controversy. The authorities are meagre, conflicting and doubtful as to the effect of such a sale.
In the case of Conkrite v. Hart & Co., 10 Texas, 140, the court, in effect, held that a sale made under an execution issued in the lifetime of the debtor, but levied after his death, was void. . That case is so reported that it cannot he determined with any certainty the scope and meaning of the court in the use of the obscure word “void.” This case was questioned in the case of Webb v. Mallard, 27 Texas, 83; and in Emmons v. Williams, 28 Texas, 779, after citing Conkrite v. Hart, the court, in effect, holds that, as to the administrator of the estate, such a sale is without effect, and that the matter remains as if no such sale had been made. In Taylor v. Snow, 47 Texas, 467, after commenting upon the case of Conkrite v. Hart, the court says: “We shall act more in consonance with right and justice, and more in conformity to the spirit of subsequent decisions, in holding that, while the sale of property under execution after the death of the defendant is relatively void, and that the title acquired by the purchaser at such a sale cannot be maintained against the administrator, or parties acquiring their title under and through the administrator, and that such sale may be avoided by any party having an interest in the property, if he should seek to do so in the proper time and manner, this cannot be done, where there has not been, and cannot be, any administration upon the estate, in a collateral proceeding,” etc.
And this is about the condition of our decisions upon the question under consideration at this time.
*421By the terms of the various acts concerning the estates of deceased persons, commencing with that of 1840, the estate, upon the death of the party, passes to and vests in the heir orlegatee, subject to the payment of the debts; while the administrator or executor, when administration is opened, is entitled to the possession of the property of the estate for the purposes of administration and payment of debts. When administration is opened, the law prescribes the order as well as the manner in which the debts against the estate are to be paid; hence, no sale made of the property under execution, after the death of the party, ought or could defeat the right of the administrator or executor to the possession and control of such property. As to them the sale must be considered as of no effect. No suit upon their part is necessary to set aside the sale, for it may be attacked in any way and at any time, whenever any right is asserted under it, against them to any property of the estate. The same is also true as to parties who have acquired title to property of the estate through the administration.
Therefore, as to the administrator or executor, and those acquiring title to the property through the administration, such a sale may, in a certain sense, be correctly denominated void; that is, as to them, it has within it that inherent vice which attaches generally to acts absolutely void; such inherent defects as render it liable to, and subjects it to attack in any collateral proceeding, whenever any right is asserted against them under the sale.
As to the heir or legatee, he takes the property subject to the debts, and it is only that part of the estate remaining after administration to which he is entitled. As to him, such is not the effect of a sale made under an execution after the death of the party. The property, in the absence of an administration, has been applied under the execution sale to the debts of the estate; while such application is made under the forms, it is not done in the manner prescribed law. To the heir or legatee who is interested in the property, and entitled to have it applied to the payment of the debts of the estate in the manner prescribed by law, such a sale is irregular and voidable. They could, by a direct proceeding for that purpose, instituted within a reasonable time, have the sale set aside and declared of no effect; but in doing this the purchaser would be entitled to subrogation to the rights and liens of the original judgment to the extent that his money had been applied to the same, and if he is in'possession of the land, he would be entitled to retain it un*422til the money is repaid. (McDonough v. Cross, 40 Texas, 285; Burns v. Ledbetter, 54 Texas, 375; Jones v. Wilson, decided at the last Tyler term.)
This is not a direct proceeding upon the part of the plaintiffs to have the sheriff’s sale vacated and set aside, and to arrive at the conclusion reached below, the court must have held the sale absolutely void. This was erroneous, for, as to the plaintiff, the sale was not affected by any such inherent defect as would subject it to collateral attack by them. Their remedy was by a direct proceeding to set aside and vacate the sale, instituted at the proper time. The sale was made in 1845, and the suit was commenced in 1874; had it been a direct proceeding for the purpose of vacating the sale, certainly it would be considered as coming too late.
Our conclusion is that the judgment ought to be reversed and the cause dismissed, and vve so award.