Snow v. Nash

50 Tex. 216 | Tex. | 1878

Gould, Associate Justice.

In June, 1867, appellant Snow recovered in the County Court of Kaufman county three judgments against Susan Nichols. On these judgments execution issued April 19, 1869,—was levied upon the land in controversy, but the sale was enjoined, at the suit of Mrs. Nichols, on the ground that the property levied on was her homestead, and that the judgment was dormant. This injunction was afterwards made perpetual. For the history of that suit, see Nichols v. Snow, 42 Tex., 72. After that case was finally disposed of in this court, Snow, in 1875, sued out another execution on his judgments, and at a sale thereunder became the purchaser of the two hundred and fifteen acres of land in controversy. In the meantime, Mrs. Nichols, in April, 1871, sold and conveyed the land to Boykin; and in October, 1872, Boykin sold and conveyed to appellee Nash. Nash sued for and recovered the land of Snow, and Snow appeals.

Counsel for appellant has presented various propositions under the assignments of error; but the case may be disposed of by answering two questions, embracing his first proposition under his first assignment of error and his fifth assignment of error.

First. Had Snow a lien upon the land in controversy by virtue of his judgment and the issuance of execution, and his levy of the same upon said land, at the time plaintiff Nash purchased it ?

Second. Was the sale by Mrs. Nichols fraudulent as to Snow, and did Nash buy with notice of the fraud ?

The record contains no evidence of any execution on the judgments prior to that of April 19, 1869. There is nothing in the record from which that execution can be inferred to be, on its face, or in fact, an alias, and not an original. See Scott & Rose v. Allen, 1 Tex., 515, to the effect that, regularly, the execution should show the fact if it be an alias. On the other-hand, throughout the injunction suit that execution was treated as the first, and as it must have been so regarded by the court on the trial of this cause, when it would be reasonable to suppose that the truth, if different, could have been easily established from, the records of the County Court. We conclude that it was original. Under numerous decisions, the judgment was dormant and had lost its lien. (Sessums v. Botts, 34 Tex., 335; Cravans v. Wilson, 35 Tex., 52.)

The levy of the execution irregularly issued on this dormant judgment was not submitted to by Mrs. ¡Nichols, but, at her suit, the sale was enjoined and the injunction was made perpetual. There was, then, no lien by virtue of that levy. We think it quite clear that Snow had no lien on the land when ¡Nash purchased.

In regard to the question of fraud, it was, under the evidence, a question of fact. We have examined the evidence, and find no such manifest error in the conclusion reached by the court on that issue of fact, as would justify us in reversing the judgment on that ground.

The judgment is affirmed.

Affirmed.