IN BANC.
The complaint alleges that April 7, 1928, Charles Williamson died intestate leaving an estate consisting of both real and personal property, that the plaintiff was appointed the administrator of the estate, that after several of the claims against the estate had been paid out of available funds other claims, which had been approved, still remained unsatisfied, and that in order to enable the plaintiff to pay them it would "become necessary to sell the real property * * * and the plaintiff herein is taking or is about to take steps to sell and dispose of" the same. It is then alleged that one of the two defendants, that is S.E. Hambelton, on the 28th day of April, 1928, as plaintiff, began an action in the circuit court against one Harry A. Williamson, who is an heir of the deceased, wherein he prayed for judgment for $1,213; that at the same time the said Hambelton secured a writ of attachment by virtue of which the other defendant, the sheriff of the county, levied upon the aforementioned real property; that subsequently the said Hambelton secured judgment upon his cause of action, obtained a writ of execution and took such proceedings as were necessary to bring about a judicial sale of the interest of said Harry A. Williamson in the aforementioned real property. The complaint closes with a prayer which seeks an injunction restraining the contemplated sale. The demurrer, interposed by the defendants on the ground that the complaint failed to state a cause of suit, was sustained; the plaintiff declined to plead further and thereupon a decree, dismissing his suit, was entered; he has appealed.
REHEARING DENIED.
ROSSMAN, J.
We believe that the opening paragraph of the decision in Malagamba v. McLean, 89 Or. 307 ( 173 P. 1175), is sufficient to determine this suit adversely to the plaintiff; we quote:
"This suit is based upon the theory that the real property of an estate is not subject to execution upon a judgment against the heir, until after final distribution of the estate; but such a conclusion is clearly erroneous."
If any further authorities are required to warrant an affirmance of the result below the following ought to suffice: Freeman on Executions (3d ed.), § 183; 17 R.C.L., Levy and Seizure, § 64, p. 164; 18 C.J., Descent and Distribution, § 333; 23 C.J., Executions, § 66. The decree of the lower court is affirmed.
AFFIRMED. REHEARING DENIED.