Scogin v. S. R. Perry & the S. Pac. R.R. Co.

Decision Date01 January 1869
Citation32 Tex. 21
PartiesA. G. SCOGIN v. S. R. PERRY AND THE SOUTHERN PACIFIC RAILROAD COMPANY.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

1. Of two judgments in the same county and against the same defendant, rendered while the act of February 14, 1860, was in force, the younger one, if recorded so as to create and preserve a lien, would, to the exclusion of the elder and unrecorded one, be entitled to the proceeds of real estate within the county, sold as the property of the defendant, notwithstanding that execution from the elder judgment was sued out and levied before the issuance and levy of execution from the younger one.

2. It seems that the phrases “real estate” and “title in fee simple to real estate” are synonymous and convertible terms in the law of Texas; and that no one can be the owner of “land” or “real estate” unless he has title to it in fee simple.

3. In view of statutory provisions contained in articles 4930 and 4912, Pas. Dig., railroads are not “real estate” in Texas. Held, therefore, that judgments, whether recorded or not, operated no lien on the railroad of the Southern Pacific Railroad Company, against which they were rendered; and that the execution first levied was entitled to the proceeds resulting from the sale of the road.

4. It seems that by force of the act of November 9th, 1866, a judgment of a court of record of this state will not become dormant in less than ten years, although no execution be issued on it. This act repeals article 4608 of Pas. Dig., so far as they are inconsistent.

APPEAL from Harrison. Tried below before the Hon. J. B. Williamson.

For all practical purposes, the opinion of the court contains a sufficient statement of the facts of the case, so that there seems to be no occasion to detail the particulars of the twenty-seven judgments against the railroad company which were involved in proceedings below.

Poag & McKay and S. P. Donley, for the appellant.

The court erred in overruling appellant's exceptions to pleas of intervention. Said pleas do not allege that the property was the proceeds of real estate incumbered by judgment lien of former judgment, and set up no other right in them under the law to claim the same. If the property was personal, it is clear they had no claims to the money. See 17 Tex. p. 209. Appellant's execution came into the hands of the sheriff on the 11th of March, 1868, and was levied on the same day. The execution of the appellees came into the hands of the sheriff on the 13th of the same month, and levied the same day. So appellant had, by virtue of the levy of his execution, a lien on the property before the other executions came into the hands of the sheriff. See 17 Tex. p. 209.

Did the judgment in favor of appellees operate as a lien on the property levied on and sold? There is no doubt of the proposition if the property be real estate in the county of Harrison, where the judgments were rendered; and if the result of this appeal rested alone upon this proposition, an affirmative determination of the same would warrant an affirmance of the judgment. The appellant took no sufficient steps for his judgment to attach as a lien upon real estate.

It is submitted by appellant, that the road bed, track, franchise, and chartered rights and privileges of said railroad company are not real estate, nor subject to judgment lien.

Article 3963, Pas. Dig., after the declaring that no judgment shall operate as a lien until filed in the office of the county clerk, and prescribing the duties of the clerk with reference to the same, etc., provides, “and the judgment so recorded shall operate as a lien on all the real estate of the defendants situated in the county in which the same may be rendered.” The other provisions of said statute affect the question in no wise, and the above extract is here made to call the attention of the court to the terms used in the statute.

To ascertain the character of the property embraced in the terms of the statute, we must resort to that law which is the basis of our jurisprudence.

In many of the states the term “real estate” is defined, and its signification fixed by statute. Our statutes have not done so, hence the necessity of looking to other sources for definitions.

“The term real estate means an estate in fee or for life in land, and does not comprehend terms for years, or any interest short of a freehold.” See Kent, Com. vol. 3, top page 492. Many other authorities might be cited, but the above is deemed sufficient.

Article 999, Pas. Dig., makes every estate in lands which shall hereafter be granted, etc., be deemed a fee simple, if a less estate be not limited by express words, etc. If the company had such an interest in the property, or the land upon which the same was superstructed, then it was real estate, and subject to appellees' judgment lien. If there was not such an interest, it was not “real estate.” An estate for years in land is personal property. So is every other estate less than freehold. See 1 Hill. Real Prop. pp. 3 and 7. And if not real estate, such lien did not attach. But for the provisions of the statute of February 8, 1860, tenth section, amended February 7, 1861, article 4939, Pas. Dig., the property might be, and doubtless would be, embraced within the scope of the definition of the term “real estate,” heretofore given. Article 4930, Pas. Dig., declares that the right of way secured, or to be secured, to any railroad company in this state in the manner provided by law, shall not be so construed as to include the fee simple estate in lands, either public or private, nor shall the same be lost by the forfeiture or expiration of the charter, but shall remain, subject to an extension of the charter, or the grant of a new charter over the way, without other condemnation. Such railroad companies can avail themselves of the privileges secured to them by their charter, so far as the appropriation of the use of private lands are concerned, in two ways: first, by contract with owners; and second, by impressment through the intervention of commissioners appointed by the county court, or chosen by the parties. See Pas. Dig. 4922. The company only contracts for the use of the real estate of the owners; or when the company is driven to the necessity of condemnation, it is only such use of the real estate of the owners that can be awarded by the commissioners. See authority last cited. And such use extends over such portions of the lands of the owners thereof as will be sufficient for the construction of the railroad, which extent is generally fixed by the terms of their respective charters, and to such extent only can the condemnation extend. Article 4912, Pas. Dig., provides that the road-bed, track, franchise and chartered rights and privileges of any railroad company in this state shall be subject to the payment of the debts and legal liabilities of said company, and may be sold in satisfaction of the same; but the said road-bed, track, franchises and chartered privileges shall be deemed an entire thing, and must be sold as such. Article 4914, Pas. Dig., provides that whenever judgment is rendered against any railroad company, the plaintiff may have execution directed to the sheriff of the county of the domicile of the company, and have the same levied on said road-bed, track, etc., which levy shall be held to embrace the whole road-bed and track, and the entire line of said railroad, whether situated in the same county or not; and the same shall be advertised and sold at the courthouse of said county, as in other cases, making the same advertisement as is provided by law in cases of the sale of land. From all of which statutes it clearly appears to be the intention of the legislature to divest the road-bed, track, etc., as an entire thing, of the character of real estate.

If, then, real estate consists in an estate in fee, or for life, and comprehends neither terms for years or any interest short of a freehold, then, tried by our statute, such an interest is expressly prohibited from passing to any railroad company, for the single thing, consisting of the road-bed, track, etc., can not be real estate, but personal property. And if personal property, it was not incumbered by judgment lien. We are borne out in this conclusion by other considerations. Judgments attach as a lien upon all real estate in the county where the judgment was rendered. This single thing, the road-bed, track, etc., extends through every county in the state from Red river to the Rio Grande; so we have a lien of a judgment of one county incumbering real estate in twenty counties, which is certainly not authorized by law, unless there be a record of such judgment in said counties.

On the other hand, how could the lien be enforced if restricted to the limits of one county, as provided by the statute?

Could you sell that portion of the thing, the road-bed, track, etc., lying in one county, in another. The law prohibits that. That would make the franchise divisible, which is impossible. The thing must be sold as a whole, which presents another insurmountable difficulty. You would, by virtue of an execution from a court of Harrison county, levy upon and sell, before the court house door of Harrison county, real estate situated in Bexar county. The statute would not authorize such sale.

Then, if this be not real estate, the law governing execution, levy and sale of personal property must control this case. Appellant's execution was received by the sheriff on the 11th of March, 1868, and levied the same day, which operates as a lien on said property from the time of the levy, and was such lien in favor of appellant before the execution of appellees came into the hands of the sheriff, on the 13th of March. Wherefore the proceeds of said sale should have been paid over immediately to appellant to the full extent of his execution. See Mercein v. Butler, 17 Tex. p. 209.

M. J. Hall and J. W. Pope, for appellee.

It was the duty of the sheriff...

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7 cases
  • Sox v. Miracle
    • United States
    • North Dakota Supreme Court
    • 2 Diciembre 1916
    ...Ct. 138 Cal. 69, 70 P. 1070; Fretwell v. McLemore, 52 Ala. 145; Bates v. Sparrell, 10 Mass. 325; Meni v. Rathbone, 21 Ind. 454; Scogin v. Perry, 32 Tex. 21; v. Duncan, 22 N.D. 534, 134 N.W. 712, Ann. Cas. 1914B, 976; Phoenix Min. & Mill. Co. v. Scott, 20 Wash. 48, 54 P. 777; Dickerson v. Ne......
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