Jackson v. Butler

47 Tex. 423 | Tex. | 1877

Moore, Associate Justice.

Though it is the main question which has been discussed by counsel, it is unnecessary for us to determine whether, under the “ act to prevent judgments from becoming dormant, and to create and preserve judgment liens,” passed February 14, 1860, a judgment of the District Court becomes dormant by a failure to issue execution upon it within one year from the time at which execution could have been issued. For, if it be conceded that the judgment upon which this action is brought had become dormant because execution had not been issued within the proper time, and though it should be admitted, if John B. Earle was still living, no execution could properly issue, after such, delay, without reviving the judgment, still, it by no means follows, that the plaintiff was not entitled, by reason of the record of a certified copy of said judgment in the office of the clerk of the County Court of McLennan county, to a lien upon all the real estate of Earle in said county, and that he could not enforce such lien by the appropriate means givemby law; for the continuance of the lien, and appellant’s right to enforce it by the aid of the court, as sought in this case, has been heretofore considered and decided in his favor by the eourt. (Wright v. Rhodes, 42 Tex., 523.)

Tinder the law of February 14, 1860, although executions were regularly issued, the judgment did not operate as a lien unless a certified copy of the judgment was registered, as therein directed. But when .the certified copy of the judg- . ment is properly recorded, the statute distinctly and positively declares, that it shall operate as a lien on all of the real estate of the defendant situated in the county in which it is recorded, and shall continue in force, unless sooner r@™ leased, fop four years from and after its registration, without being reinscribed. The existence and continuance of the lien is in no way connected with or dependent upon the issuance of the execution. It continues until it is lost or expires by the limitation imposed by the statute creating it, (Muir v. Leitch, 7 Barb., 341; Love v. Harper, Humph., 113,) If the lien must be enforced by an execution, it will, of course, be necessary, if the time within which an execution may issue has elapsed, to revive the judgment before the lien can be made available.

' But Jackson could not, by reason of the provision, of our probate laws, enforce his lien by an execution against Earle’s estate after his death. “ A judgment lien constitutes no property or right in the land itself.” It merely confers a right to have it sold for the discharge of such hen, to the exclusion of other adverse interests. If the owner conveys the land to another, although it is still charged with the lien, the vendor has no longer any interest in or title to it. And, as Earle had parted with all of his interest in this land before he died, neither his heirs or administrator had any title to" or claim upon-it. The lien therefore could not be enforced through the Probate Court. And certainly the judgment against Earle would not support or warrant an execution against Butler. Consequently, appellant could only enforce his lien upon the land in Butler’s hands, by suit against him for this purpose, as he sought to do in this case.

From what has been said, it is evident that appellant, looking merely to the allegations in Ms petition and amended petitions, and taking them as true, as we must do, as the case is now presented, was entitled to a lien upon the land in appellees’ .hands, for the satisfaction of his judgment when he instituted his suit, and that the lien aequired by the registration of the certified copy of • Ms judgment against Earle was not released or lost by his Failure to cause executions to issue within one year from the time when.an execution might have issued. If the lien thus acquired has been lost, abandoned, or released by anything transpiring subsequent to the institution of the suit, it is not at tMs time a matter for "our consideration.

The judgment is reversed and the. cause remanded.

Reversed and remanded.