Brackenridge v. City of San Antonio

• Decision Date: 01 January 1873
• Parties: J. T. BRACKENRIDGE v. THE CITY OF SAN ANTONIO.
• Court: Texas Supreme Court

39 Tex. 64

J. T. BRACKENRIDGE

v.THE CITY OF SAN ANTONIO.

Supreme Court of Texas.

1873.

A purchaser of real estate, pending suit to subject the property to the satisfaction of a vendor's lien, acquires no title as against the plaintiff's lien for unpaid purchase money, though the plaintiff may have been guilty of laches, after the institution of suit, in taking proper steps to procure a judgment enforcing his lien.

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

On the ninth of March, 1868, a judgment by default was rendered against one Deckman, in favor of the city of San Antonio. The petition of the city claimed a vendor's lien on certain property, and the charge of the court submitted that claim to the jury. The jury not having found affirmatively as to the lien, the judgment was for money only, and not according to the prayer of the petition.

The counsel for the city moved for a new trial, and to set aside the verdict. The motion was sustained, and cause reinstated April 2, 1868, “upon the payment of costs by the city.”

March 10, 1869, Deckman moved to annul the order granting a new trial and reinstating the case, which was sustained.

December 1, 1870, counsel for the city of San Antonio moved to set the preceding order, and reinstate the case. The motion was overruled. On appeal, the judgment below was reversed, and the case reinstated.

The only new element in the case since it was before this court was the introduction of other parties, viz.: Brackenridge and wife, who claimed to be innocent purchasers, without notice.

In December, 1869, a conveyance was made by Deckman, through Green, to M. M. Seay, to the land, upon which a lien was claimed, to satisfy the judgment above referred to, and E. M. Brackenridge became purchaser of it in December, 1870.

At the June term, 1872, judgment was rendered in favor of the city of San Antonio, for $409.60, and decreeing that the land be sold to satisfy the vendor's lien.

Walton & Green, for appellant. If the judgment stands, of the spring term, 1868, an execution being issued within a year, it has lost its lien as a personal judgment. If it stands as a judgment of the tenth of March, 1869, it has lost its lien for the same reason, and a period of twenty months having elapsed without any effort on the part of the plaintiff to change or improve the character of his judgment, without any steps taken to preserve his judgment lien, and for all this time acquiescing in the order...