Nye v. Moody

70 Tex. 434 | Tex. | 1888

Walker, Associate Justice.

Moody brought an action of trespass to try title for two hundred acres of land against the -defendants. The title asserted was a deed from W. A. Casseday, under whom defendants also claimed title, with description as follows:

“Two hundred acres of the Chas. L. Harrison one-third league survey on the Wichita river, in Wichita county, Texas, to be run off by the surveyor of said county, fronting four hundred and seventy-five varas on the river and back for complement of two hundred acres to be taken out of my half of said survey, and begin at the upper or lower corner and run with the upper or lower line of my survey for complement. Field notes to be attached to this deed by said surveyor and become a part of this instrument.” The deed bore date Hovember 13,1879, and was duly recorded AprillS, 1881, in Clay county, to which "Wichita county had been attached for judicial purposes. Moody had' Warren, the county surveyor of Wichita county, make a survey with field notes which were attached to the deed, in August or September, 1882. Stone and Giddings recovered a judgment against Casseday December 17, 1880, in the district court of McLennan county. An abstract of this judgment was filed for record and was recorded January 21, 1881, in judgment record book No. 1, page 5, by the county clerk of Clay county. October 26, 1881, an alias execution was issued on the judgment to Clay county under which the entire Casseday interest in the survey, and including the Moody part, was sold. Sheriff’s deed was executed and defendants showed title under this sale. .

The case was tried by the judge, and he found as a fact that the abstract of the judgment had not been indexed, and that the lien was not fixed by the record without such indexing. The testimonyon which the finding was based was amply sufficient. The abstract had not been entered on the index as the j statute required.

Judgment liens are regulated by statute. Revised Statutes, article 3155, provides what an abstract of a judgment for record shall contain. Article 3Í57 provides that “the county clerk : shall file and immediately record the same (the abstract) in ■ the judgment record, noting in such record the day and hour of such record,and shall also at the same time enter it upon, the index.”

Article 3158: “The index to such judgment record shall be: alphabetical, and shall show the name of each plaintiff and of each defendant in the judgment, and the number of the page of the book upon which the abstract is recorded.” .

Article 3159 provides: “When any judgment has been recorded and indexed, as provided in the next preceding articles, it shall from the date of such record and index operate as a lien upon all the real estate of the defendant situated in the county where such record and index are made, and upon all real estate which the defendant may thereafter acquire, situated in said county.”

As the lien is the creature of the statute, it follows that until the conditions to the lien fixed by the statute have been complied with the lien is not established. The indexing so carefully described and provided for can not be dispensed with by the courts. The terms used in the statute are simple and clear. The meaning and intent are expressed. It is not for the courts to question the policy of the law. They can only apply it to a state of facts ascertained when rights are litigated and the jurisdiction of the courts invoked. •

Opinion delivered April 10, 1888

The deed from Oasseday to Moody sufficiently identified the interest conveyed. The right to select the locality of the two hundred acres was valid, and will be protected. (Wofford v. McKinney, 23 Texas, 46.) The subsequent levy and sale were subject to Moody’s rights. That the field notes were subsequently attached to the deed would not lessen its effect as a recorded instrument.

There was no error in the judgment below and it is affirmed.

Affirmed,