19 S.W. 355 | Tex. | 1892
Lead Opinion
This is a suit of trespass to try title, by appellees against appellants, for three tracts of land, described as lot *100 421 in section 1, and lots 201 and 202 in section 2, Galveston Island. Both parties to the suit claim title through John C. Watrous, who is admitted as common source.
Appellants' title relied upon consists of:
1. Judgment obtained on the 9th day of June, 1854, by Joseph Moreland, against John C. Watrous, in the District Court of Galveston County, for $1056.05.
2. Execution issued on this judgment July 21, 1854, which was received by the sheriff of Galveston County July 25, 1854, and returned August 12, 1854, "no property found."
3. Another execution was issued July 23, 1855, and received by the sheriff July 25, 1855, and levied on the property in controversy, which was sold under this execution to C.B. Adams, the first Tuesday in November, 1855.
4. Deed from the sheriff to C.B. Adams, dated November 6, 1855.
5. Appellants claim and assert title as the sole heirs of C.B. Adams.
Appellees rely upon the following title:
1. Power of attorney from John C. Watrous to Henry Martin.
2. Deed executed February 21, 1855, by Henry Martin, as attorney in fact of John C. Watrous, conveying the land to William R. Smith.
3. Appellees deraign title from and under Smith.
The court below rendered judgment in favor of appellees for the land. The court in effect held, that as more than twelve months elapsed from the date of the issuance of the first execution on July 21, 1854, to the day of the issuance of the second execution, July 23, 1855, the lien created by reason of the rendition of the judgment was lost, and that the title executed to Smith, February 21, 1855, by the agent of Watrous, was superior to that of appellants acquired under the execution sale of November, 1855. This finding of the court presents the only question that we determine in disposing of the case.
It is contended by appellants, that the execution act of 1842 creates a lien on the real estate of the debtor in the county where the judgment is rendered from the date of the rendition thereof; and that to preserve the lien issuance of execution is only required within twelve months from the date of the rendition of the judgment; that the law in preserving the judgment from becoming dormant and preserving its lien does not require as an act of diligence that executions shall issue within every twelve months from the date of issuance of the preceding execution; that the diligence required in issuing executions in order to preserve the judgment lien depends upon the facts of each particular case, and that the facts of this case show diligence in this respect; that if the Act of 1842 requires that executions shall be issued every twelve months in order to preserve the judgment lien, that it is diligence if the second execution was issued within twelve months from the date of the return of the first; that the time should commence to *101 run from the date of the return of the writ, and not from the date of its issuance; that the issuance of the first execution preserved the judgment lien for twelve months; that the purchase by Smith, in February, 1855, was when this lien was existing, and that by purchasing at said time he only acquired such right as Watrous had, and that his purchase was subject to the lien of the judgment against Watrous; and that as Watrous could not in an ordinary action of trespass to try title defeat the execution sale, for this reason it is equally as binding on Smith. This in substance presents the views of appellants concerning the merits of this case.
The Act of 1842, Paschal's Digest, article 3783, creates a lien on all the real estate of the debtor situated in the county where the judgment is rendered. This lien operates from the date of the judgment, provided that it shall cease to operate if execution be not issued within twelve months from the date thereof. The difference between this act of the Legislature and that of February 5, 1840, is, that the latter, after providing that execution shall issue within twelve months in order to preserve the judgment lien, also requires that thereafter "due diligence shall be used to collect same." In determining the degree of diligence that should be exercised by the judgment creditor under the Act of 1840 in collecting his judgment in order to keep alive the lien, this court has in several cases held, that execution must be issued out continuously from time to time. Bennett v. Gamble,
In a contest between a prior purchaser from the judgment debtor and a subsequent purchaser under an execution sale, the former can, in protection of his title, urge the loss of the judgment lien relied on by the latter. Gruner v. Westin,
We conclude the case should be affirmed, and so report it.
Addendum
This opinion is affirmed in view of the former utterances of this court, which have no doubt been understood to settle the law upon the question.
Affirmed.
Delivered March 22, 1892.
