45 Tex. 479 | Tex. | 1876
The statute prescribes the manner of executing an attachment on personal property, but fails to direct in what manner lands may be attached. (Paschal’s Dig., art. 149.) Mr. Drake, in his work on Attachments, says: “ The requisites of an attachment on real estate are generally determined by statute; where, however, that is not the case, the rule which has obtained in Maine and Massachusetts would probably be received and applied — that it is not necessary for the officer to go upon the land, or into its vicinity, or to see it, or to do any other act than make return upon the writ that he had attached it.” (Drake on Attach., sec. 236, and ref.; Perrin v. Leverett, 13 Mass., 128; Taylor Mixter. 11 Pick., 341; Burkhart v. McCellan, 15 Abbott’s Prac., 243, note; Crosby v. Allyn, 5 Me., 453.) It is believed to .have been the general practice in this State to levy both executions and attachments on real estate without going upon the land. In a matter so largely affecting titles, it would require considerations other than the hardship of a .particular case to justify a ruling at variance with that practice, especially when, as we have just seen, it is supported by authority. The case may serve to show that the statute needs amendment, so as either to give more notoriety to the act of .levying attachments on lands, or to provide for notice by registration after the levy, as is required in some States, in order to preserve the lien. (See 4 Kent, 435, note d.)' In this case the return of the sheriff shows a levy of the writ of attachment, otherwise valid, and the fact that the officer did not go upon the land, does not affect it.
That a valid levy created a hen on the land attached, and, when properly returned on the writ into the court from which it issued, is notice to third parties, are propositions
It follows, that Mrs. Louisa Hancock, having bought the land under these circumstances, took it subject to the plaintiff’s lien. The plaintiff made her a party, and whilst that may have been unnecessary, she cannot complain.
In order to settle in advance the question of the validity of the conveyance by Samuel Hancock to his sons, they were properly made parties. The verdict of two juries declaring the conveyance to them fraudulent will not, under the evidence, be disturbed. The questions of the authority of the District Court to enforce the attachment lien, notwithstanding the discharge in bankruptcy of Samuel Hancock, is one which we regard as now settled. In the case of Elliott v. Booth, 44 Tex., 180, the authorities were, in an opinion by Justice Reeves, collated with care, and the conclusion reached that, although a discharge in bankruptcy would, prevent a personal judgment against the bankrupt, the State courts would still have jurisdiction to enforce a lien acquired by attachment or otherwise. The decisions of our predecessors on this subject were not uniform, but the question is now believed to be settled in harmony with the ruling of the Supreme Court of the United States. (Doe v. Childress, 21 Wall., 642.)
The court did not err in disregarding the defense of limitation, which was inapplicable to the case. The effect of the decree is to subject Mrs. Hancock’s interest in the land to the attachment lien, but her right to the land, after discharging the lien, was not in question.
. It has been deemed necessary to notice only the questions discussed in appellant’s brief, without passing in detail on tire various errors assigned.
Affirmed.