Ayers v. Waul, 44 Tex. 549

Ayers v. Waul

44 Tex. 549 | Tex. | 1876

Reeves, Associate Justice.

It is not denied that the appellee recovered a judgment in the District Court of Washington county against John Schackey and C. Hueske, nor that the judgment was a lien on the real estate of the judgment debtors situated in the county where the judgment was rendered at the time of its rendition. But it is contended by appellants, who are also creditors of the estate of C. Hueske, that the judgment in the case appealed from is erroneous—

1. In classifying the claim of appellee as a claim of the third class.

*557The evidence of the claim was the judgment against Schackey and Hueske, recovered by the appellee in 1872. Hueske died in November, 1872, and the claim was allowed by his administrator, and approved by the court, as a claim of the third class, with a lien on the lands owned by tbe deceased in Washington county from the date of the judgment. If the judgment was a lien on the lands of the deceased, as held by the court, it was a claim of the fifth class. The mistake, however, is corrected by the other recitals in the judgment.

2. In adjudging appellee’s claim to have priority over the claims of appellants, because the lien of the judgment was lost by the holding up of execution by the plaintiff therein, and because the affidavit claimed no lien, and the administrator had not allowed or passed upon the question of lien.

The witness, J. D. Giddings, states that no stay of execution was ever given, because the proposition to stay it was not complied with by the defendants, and that the indorsement on the execution, that it was held up by plaintiff’s attorney, was not signed because of the reasons above stated.

It is not regarded as material to the rights of appellants whether the execution was stayed or not. Their claims accrued after appellee had obtained his judgment and after the indorsement on the execution. It was not shown that appellants extended credit to the deceased on the faith of his real estate, or that it was unincumbered. The law in force at the time the judgment was obtained did not require that a transcript of the judgment should be recorded, in order to preserve a lien on the real estate of the debtor in the county where the judgment was rendered. The lien was preserved by the issuance of execution upon the judgment within one year, as required by the statute. (Paschal’s Dig., art. 7005.)

The affidavit to the claim does not in express terms assert a lien, though it is accompanied by a certified copy of the judgment, which was approved by the administrator and *558allowed by the court as a claim having a lien on the lands of the deceased situated in Washington county. The lien is not collateral to the judgment, but springs out of it by operation of law, being evidenced by the judgment itself. It might have been enforced during the lifetime of the debtor by execution on the judgment, and since his death it may be enforced by complying with the requirements of the statute regulating the administration of estates. The statute requires the claim to be verified by the affidavit of the claimant and approved by the administrator and allowed by the court. It is also made the duty of the administrator to report to the court a list of all judgments and special liens presented to him for allowance. The statute further provides that judgments rendered against the deceased in his lifetime, which are liens on the real property of the estate, shall be .classed and have priority of payment as, claims of the fifth class, so far as the same can be paid out of the proceeds of the sales of such real property. (Paschal’s Dig.) art. 5674.)

The assertion of the lien in the affidavit would add nothing to the judgment that it did not already have. It does not appear that the lien had been waived. It is shown that the application for the approval and classification of the claim asserting the lien by appellee, and the objection thereto by appellants, was the matter at issue between the parties. The judgment approving the claim recognized the lien, and, after classifying the debt, ordered it to be paid in due course of administration.

The remaining objection is that no description or data were furnished by which to designate the lands claimed to be subject to the lien, &c.

The statute does not designate what particular lands are subject to the lien. It only provides that a final judgment shall be a lien on all the real estate of the judgment debtor situated in the county where the judgment is rendered from the date of the judgment. The probate act provides for the *559payment of such judgments out of the proceeds of the sales of the real property subject to the lien.

It was not necessary that the lands subject to the lien should be described on an application for the approval and classification of the claim, as would be required on an application for the sale of the land to pay the debt.

The judgment is affirmed, as establishing a claim of the fifth class.

Affirmed.