Wright v. Rhodes

42 Tex. 523 | Tex. | 1874

Lead Opinion

McAdoo, J.

The appellant’s testator, Calhoun, recovered a judgment in Walker County District Court, against Rhodes and wife. The judgment was recorded in accordance with the Act of February 14, 1860 (Paschal’s Digest, Article 3963), on the 17th of February, 1866.

In October, 1866, Rhodes and wife executed a mortgage to F. and S. Gibbs, on all the community lands they had in the county, to secure a debt to them.

Ho execution was issued in favor of appellant until June 3, 1869.

The court below found, in its decree, that the judgment-lien of appellant was lost, by reason of the repeal of the Act of February 14, 1860, by the Act of November 9, 1866, and the non-issuance of execution on the judgment within one year; and judgment was rendered in favor of the mortgage-lien of Gibbs and Gibbs.

Is this judgment based on the true construction of the repealing law referred to ? We think not. When the judgment was recovered, a lien was secured for four years, without execution, notwithstanding the repeal of the Act of February 14, 1860 (Paschal’s Digest, Article 3963), by the Act of November 1866, because that repealing act provides that “ no lien upon lands created by judgment under any former law, shall be “ affected, or the rights of parties in any way impaired by the “ repeal of such law.”

It was evidently the legislative intention to repeal the law in question as to all future judgments, but in no manner to affect the rights of parties already secured under the repealed law. The language of the repealing law is conclusive, in its plain terms, of such legislative intention.

Now, how stood the lien of appellant created by the judgment recorded under the Act of February 14, 1860 ? and in what condition were his rights, in reference to this property, when the repealing Act of November 9, 1866, was passed ? Why, his lien was alive and active, and so would have continued until February 17, 1870. Execution issued at any time prior to that date would have continued the judgment lien. It actually issued, however, more than eight months before that time expired; and this issuance of execution would hold the lien for ten years from the date of its issuance.

This suit was properly brought to revive the judgment against Mrs. Rhodes, as the survivor of the community, inasmuch as the original judgment did not bind her separate estate, and she had qualified as survivor under Article 4648, Paschal’s Digest.

There is manifest error, therefore, in the judgment of the court below, as to the rights of the appellant and the appellees, F. and S. Gibbs.

Baker & Botts, for appellants. Jackson & Jackson, for appellee Gibbs.

The judgment of this court must be, that the appellant have his judgment-lien established as a prior lien over that of the appellees, and that the lien of appellees be established as a second mortgage or lien upon the lands in controversy.

We see no error in that part of the judgment which relates to the interveners, B. and J. Eastman.

The decree of the court below is reversed, and decree rendered in this court, in accordance with this opinion.

Reversed and reformed.

(Opinion delivered September 7, 1873).

On Rehearing.

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Rehearing

Devine, J.

A judgment was rendered in this case by our predecessors reversing, in part, the judgment of the court below, and reforming the same. A rehearing was granted by our predecessors, and the case came before the present court on the original and additional briefs presented on behalf of appellant and appellees. After a patient examination of the question at issue, namely, the existence of plaintiff’s lien on the lands in Walker county, as described in the petition filed in this suit, as against the appellees, by reason of the judgment rendered in favor of appellant’s testator on the 20th of October, 1865, and his filing the same for record in the County Olei’k’s office, on the 17th of' February, 1866, we are satisfied that the mortgage executed by Rhodes and wife to F. and S. Gibbs, on the 17tlx of October, 1866, was acquired by F. and S. Gibbs with notice of the prior existing judgment-lien, in favor of plaintiff’s testator, 8. Calhoun; and that the commencement of this suit, July 30, 1869, making defendants parties, before the expiration of four years from the date of recording his judgment, kept his lien on the land alive, so far as Mrs. Rhodes and F. and S. Gibbs are concerned.

The fact that defendant failed to answer until after the expiration of four years from the recording of plaintiff’s judgment, or that he was delayed in obtaining the judgment sought, will hot operate to his prejudice. The death of Joseph F. Rhodes, one the defendants in the first suit; the taking of all the community estate by his surviving wife ; the mortgage claim of the defendant Gibbs; the return of “no property “ found,” by reason of the sheriff refusing to levy tire execution on this property (there being none other liable), compelled plaintiff’s testator to bring the defendants before the court for the adjudication of the respective rights of all parties, and the pendency of tire suit between plaintiff and defendants, did not impair his lien so far as they are interested.

While we differ as to the reasons given for the judgment rendered in this case by our predecessors, we are satisfied that the judgment rendered was the proper one, and we will not disturb it.

(Opinion on rehearing delivered March 30, 1875.)