Lindsay, J.
Notwithstanding the voluminousness of this record, and the very protracted and multifarious pleading and evidence in the case, it is at last a simple contest between a creditor and the heir-at-law of a debtor intestate. •
At the death of the ancestor of the heir, he was indebted to the creditor in a sum which was afterwards reduced to a judgment by suit against the administrators. At the time of the judgment the administrators held in their possession personal property of the intestate, consisting mainly of dioses in action, amounting to about six hundred dollars, and a certificate for a league and labor of land. This was about all the estate of the intestate reported and returned to the Probate Court by the administrators. It appears that the creditor could not enforce the collection of his judgment by execution against the administrators, nor could he collect his claim in any other way, because the law did not authorize the issuance of an execution against the estate of a decedent in the hands of his personal representative. The judgment was to be paid in the due course of administration. Nevertheless the judgment operated, by the law of the 5th of February, 1840, as a lien upon all the land and dioses in possession in the hands of the administrators, at the time of the judgment, which were then in the county where the judgment was rendered. By repeated recognitions in the decisions of this court, land certificates have been regarded as dioses in ¿possession, and not mere dioses in action, and, therefore, a vendible commodity in the hands of the personal representative for the payment of debts. Hence, the judgment lien attached to this certificate before it was carried into grant, and was a positive legal lien. The subsequent [152]*152acts of the officers of the law, in making the survey and location, and issuing the patent, in the name of the heir, would not and could not divest the legal right thus acquired; and the appropriation and grant of land, under the certificate, to the heir, would enure to the benefit of the judgment creditor until his debt was satisfied, and the heir would only be the holder of the legal title for the use and benefit of the creditor. The holding of the legal title by the heir would only be as a trustee for the creditor until the debt was paid. This would have been the legal consequence and conclusion, if the certificate, which is treated as a sort of chattel by the law of Texas, had never been sold by the administrator, under an order or decree of the Probate Court.
By virtue of the order and decree of the Probate Court, the administrator of the debtor sold the certificate for the league and labor before the emanation of the grant from the State to the heir-at-law, and while the title was still inchoate and imperfect, and subject to be lifted and changed by the legal claimant, as well as to various other contingencies, which might defeat the special and specific appropriation, survey and location of the identical land now, or in any other case, in controversy. If the certificate was the subject of sale in the hands of the personal representative, under a decretal order of the Probate Court, then all the incidents attached to the certificate passed to the purchaser under the sale. It would be absurd and preposterous to suppose that nothing but the mere paper and ink was acquired by a ptuckaser under such sale. It was the sale of an equity. It did not create a right to any specific land, but it vested a right to acquire land in quantity, and upon the terms of the certificate. Both the right of the heir and the right of the purchaser, under the administrator, were mere equities until the legal title to the thing, or the land, was perfected by being carried into grant. The debatable ground between the purchaser and the heir was simply as to the priority of those equities. As between the heir and the creditor, for whose benefit the sale was made, the equity of the creditor had. [153]*153•precedence, and was given priority by express law, which subjected both real and personal estate in the hands of the personal representative to the payment of creditors, before the heir could take the legal estate cast upon him by descent, or by operation of law. This provision of law is the reservation of an equity against a perfect legal estate, and is made paramount to both the legal and equitable estate of the heir, and is enforcible in all courts. For a stronger reason, then, when the •estate of the heir is only an equity, the right of the creditor to the payment of his debt out of such an estate is prior and paramount to the right of the heir to take and hold.
But it has been contended that a location and survey of land, under the certificate, without the patent, or final act of the government, will authorize, under the laws of Texas, the bringing of an action of trespass to try title. True, but the peculiarity of the judicial system of Texas is not borne in mind, or justly conceived, when this argument is resorted to. The action of trespass to try title has, in some of its characteristics, some slight similitude to the action of ejectment at the common law, in which the plaintiff must recover, if he recovers at all, upon the strength of his legal title alone. But in the action of trespass to try title to land in Texas, he may recover as well upon an equitable as upon a legal title. Hence, such an argument contributes nothing towards the elucidation of the point now before the court. The sale of the certificate, under the order of the Probate Court, was the sale of the equitable lien of the creditor, created by his judgment, which the law had given to secure the payment of his just claim, and which had priority over the inheritable right of the heir by the authority of that same law. This prior right and equity passed by the judgment, the sale under it, and its confirmation, by the Probate Court, vesting this prior equity in the purchaser, with all its- incidents.
At the death of the intestate it was a simple equity, giving a right against the State, and even a right of compelling the State by suit to appropriate a definite quantity of land to the [154]*154proper claimant, when located, surveyed, and duly recorded, and to execute and deliver the last muniment of title—the patent. The certificate, therefore, was not land vested in the heir, either absolutely or sub modo. Neither did the location and recorded survey under it make it so, until the grant was actually made by the Government, but only the right to get the land thus specifically located and surveyed and recorded; and consequently was a mere equity, as well against the State as against all its citizens.
The intestate died in 1839. His widow, in conjunction with another, administered shortly thereafter. Judgment was obtained by the creditor, against the administrators in 1841. By operation of law it was a lien upon the real and personal estate of the intestate in the county at the time of the judgment, but to be paid in the due course of administration. That administration continued until 1846, without the satisfaction of the judgment. The judgment creditor then petitioned the Probate Court, as he was authorized to do under the law, to sell the only thing, this chose vn possession, in the hands of the administrator, belonging to the estate, for the satisfaction of his judgment.
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Lindsay, J.
Notwithstanding the voluminousness of this record, and the very protracted and multifarious pleading and evidence in the case, it is at last a simple contest between a creditor and the heir-at-law of a debtor intestate. •
At the death of the ancestor of the heir, he was indebted to the creditor in a sum which was afterwards reduced to a judgment by suit against the administrators. At the time of the judgment the administrators held in their possession personal property of the intestate, consisting mainly of dioses in action, amounting to about six hundred dollars, and a certificate for a league and labor of land. This was about all the estate of the intestate reported and returned to the Probate Court by the administrators. It appears that the creditor could not enforce the collection of his judgment by execution against the administrators, nor could he collect his claim in any other way, because the law did not authorize the issuance of an execution against the estate of a decedent in the hands of his personal representative. The judgment was to be paid in the due course of administration. Nevertheless the judgment operated, by the law of the 5th of February, 1840, as a lien upon all the land and dioses in possession in the hands of the administrators, at the time of the judgment, which were then in the county where the judgment was rendered. By repeated recognitions in the decisions of this court, land certificates have been regarded as dioses in ¿possession, and not mere dioses in action, and, therefore, a vendible commodity in the hands of the personal representative for the payment of debts. Hence, the judgment lien attached to this certificate before it was carried into grant, and was a positive legal lien. The subsequent [152]*152acts of the officers of the law, in making the survey and location, and issuing the patent, in the name of the heir, would not and could not divest the legal right thus acquired; and the appropriation and grant of land, under the certificate, to the heir, would enure to the benefit of the judgment creditor until his debt was satisfied, and the heir would only be the holder of the legal title for the use and benefit of the creditor. The holding of the legal title by the heir would only be as a trustee for the creditor until the debt was paid. This would have been the legal consequence and conclusion, if the certificate, which is treated as a sort of chattel by the law of Texas, had never been sold by the administrator, under an order or decree of the Probate Court.
By virtue of the order and decree of the Probate Court, the administrator of the debtor sold the certificate for the league and labor before the emanation of the grant from the State to the heir-at-law, and while the title was still inchoate and imperfect, and subject to be lifted and changed by the legal claimant, as well as to various other contingencies, which might defeat the special and specific appropriation, survey and location of the identical land now, or in any other case, in controversy. If the certificate was the subject of sale in the hands of the personal representative, under a decretal order of the Probate Court, then all the incidents attached to the certificate passed to the purchaser under the sale. It would be absurd and preposterous to suppose that nothing but the mere paper and ink was acquired by a ptuckaser under such sale. It was the sale of an equity. It did not create a right to any specific land, but it vested a right to acquire land in quantity, and upon the terms of the certificate. Both the right of the heir and the right of the purchaser, under the administrator, were mere equities until the legal title to the thing, or the land, was perfected by being carried into grant. The debatable ground between the purchaser and the heir was simply as to the priority of those equities. As between the heir and the creditor, for whose benefit the sale was made, the equity of the creditor had. [153]*153•precedence, and was given priority by express law, which subjected both real and personal estate in the hands of the personal representative to the payment of creditors, before the heir could take the legal estate cast upon him by descent, or by operation of law. This provision of law is the reservation of an equity against a perfect legal estate, and is made paramount to both the legal and equitable estate of the heir, and is enforcible in all courts. For a stronger reason, then, when the •estate of the heir is only an equity, the right of the creditor to the payment of his debt out of such an estate is prior and paramount to the right of the heir to take and hold.
But it has been contended that a location and survey of land, under the certificate, without the patent, or final act of the government, will authorize, under the laws of Texas, the bringing of an action of trespass to try title. True, but the peculiarity of the judicial system of Texas is not borne in mind, or justly conceived, when this argument is resorted to. The action of trespass to try title has, in some of its characteristics, some slight similitude to the action of ejectment at the common law, in which the plaintiff must recover, if he recovers at all, upon the strength of his legal title alone. But in the action of trespass to try title to land in Texas, he may recover as well upon an equitable as upon a legal title. Hence, such an argument contributes nothing towards the elucidation of the point now before the court. The sale of the certificate, under the order of the Probate Court, was the sale of the equitable lien of the creditor, created by his judgment, which the law had given to secure the payment of his just claim, and which had priority over the inheritable right of the heir by the authority of that same law. This prior right and equity passed by the judgment, the sale under it, and its confirmation, by the Probate Court, vesting this prior equity in the purchaser, with all its- incidents.
At the death of the intestate it was a simple equity, giving a right against the State, and even a right of compelling the State by suit to appropriate a definite quantity of land to the [154]*154proper claimant, when located, surveyed, and duly recorded, and to execute and deliver the last muniment of title—the patent. The certificate, therefore, was not land vested in the heir, either absolutely or sub modo. Neither did the location and recorded survey under it make it so, until the grant was actually made by the Government, but only the right to get the land thus specifically located and surveyed and recorded; and consequently was a mere equity, as well against the State as against all its citizens.
The intestate died in 1839. His widow, in conjunction with another, administered shortly thereafter. Judgment was obtained by the creditor, against the administrators in 1841. By operation of law it was a lien upon the real and personal estate of the intestate in the county at the time of the judgment, but to be paid in the due course of administration. That administration continued until 1846, without the satisfaction of the judgment. The judgment creditor then petitioned the Probate Court, as he was authorized to do under the law, to sell the only thing, this chose vn possession, in the hands of the administrator, belonging to the estate, for the satisfaction of his judgment. The order was decreed, the sale of the certificate made, the ancestor of the defendants in error became the purchaser, the purchase money was paid by him, and the report and sale by the administrator confirmed by the court; and the descendants of the purchaser, the defendants in error, are now in possession of the land, 'appropriated and granted by thb State upon that certificate—for which land this action of trespass to try title has been brought by the plaintiffs in error.
Although the legal title has been vested in the heir-at-law since the sale and. purchase of the certificate, this court is of opinion that a superior and paramount title in equity is in the defendants in error. And while, in this action, a superior equity is available as a sword of offense, even against the legal title, it is, and ought to be, equally a shield of defense against the same character of title.
It is, however, urged that there were many errors committed [155]*155in the Probate Court in the progress of the administration. In reply to this the court can only say, that the verity and sanctity of judicial records are not to be assailed in this collateral way. Reason, as well as public policy, if this court was not fortified by an almost unbroken series of judicial determinations upon the point, would forbid this court from going behind the solemn judgments of courts having jurisdiction of the subject matter, and reagitating the questions sought to be brought into issue in this investigation. It is needless to refer to authorities upon this subject. It has been ably and elaborately argued, both in and out of the State, and may be considered as too well settled to be again seriously disturbed.
The court is therefore of opinion that the judgment of the court below ought to be affirmed, which is accordingly done.
Affirmed.