32 Tex. 31 | Tex. | 1869
The points in controversy in this case call upon us to consider the statutes relative to judgments and sheriffs’ sales.
Both parties claim title to a certain tract of land, based upon sheriffs’ deeds founded upon different judgments against the original owner of the land. Plaintiff and appellant, Hart,
Epperson and Russell derive title from a sale based upon several judgments, one of which was rendered against Gordon on the same day and at the same court in which the former judgment was rendered, and was affirmed in the Supreme Court 1st of May, 1867, and another rendered on the day afterwards against one McCulloch, and appealed to the Supreme Court, on the 5th of January, 1861, Gordon being surety on the writ of error bond, which judgment was affirmed by the Supreme Court on the 26th of September, 1863, and sale ensued in February, 1868. ■
In short the facts are, the different judgments were rendered on the same day in the District Court—one against Gordon, which was affirmed in the Supreme Court, and sale made of' the land in controversy before the affirmance of the other in the Supreme Court, in which Gordon was surety on the writ of error bond.
Appellant insists that there was a lien created by virtue of' the writ of error bond, which did not exist by the judgment against Gordon in person; and this he considers the question at issue.
The statute (Art. 1495) provides that the bond for writ of error 2 shall have the force and effect of a judgment against all the obligors.” It can not be inferred that a bond, the condition of which is that the maker will pay the judgment of the Supreme Court if the judgment debtor neglects so to do, and which is merged in a judgment and has the force and effect of a judgment only on this condition, can have a greater force or effect than a judgment to which it is a contingency, and with
In the case before the court a judgment against a debtor would have as great force and effect in creating a lien upon the land of the debtor as his subsequently entering into a bond to secure the payment of a judgment of a third party rendered on the same day. It would require an explicit statute before a court would adjudge that a judgment debtor could defeat his creditor by voluntarily using his property to pay the debt of a third party; and we should hesitate long before we would take from a creditor the proceeds of a judgment, and apply the same to the satisfaction of a judgment against a third party, obtained afterwards.
The appellant has referred us to the decisions of this court, and insists that because it has been decided that the judgment of this court, affirming the judgment of the District Court, is a forfeiture of the bond given for writ of error, and upon the
We admit that from the 14th of February, 1860, to. the 9th of November, 1866, that no lien existed by virtue of a judgment simply, unless the judgment was recorded as provided by the act of 14th of February, 1860. But we know of no law-providing that a bond shall operate as a lien in any case. It is because a bond is declared by the statutes to have “ the force and effect of a judgment,” that the lien is created, and of course where the judgment unrecorded, would not create a lien, a writ of error bond, unrecorded, "would not create a lien, because it simply has the force and effect of a judgment. A bond for writ of error, therefore, betunen the above-named periods of time, 14th of February, 1860, and 9tli of November, 1866, did not operate as a lien, and no lien existed against Cordon’s property by virtue of either judgments or bonds on the 9th of November, 1866. Whether the act of this date creating a lien on all the real estate of a judgment debtor from the date of the judgment operated retrospectively on the judgments of 1860, or whether it affected them from the time of the passage of the act, or whether it had any effect on judgments previously rendered, it is unnecessary for us to decide; because in either case no lien would be of anterior date to that created by the judgment against Cordon, by virtue of which the defendants in error claim title to the land.
Affirmed.