Cook v. Love

• Decision Date: 01 January 1870
• Parties: G. & D. COOK v. K. J. LOVE AND ANOTHER.
• Court: Texas Supreme Court

33 Tex. 487

G. & D. COOK

v.K. J. LOVE AND ANOTHER.

Supreme Court of Texas.

1870.

1. In January, 1858, F. attached real estate for debt, and on the first of April, 1858, recovered in the suit a judgment in personam, but no judgment or order of condemnation or sale of the land. On the seventeenth of March, however, pending the suit, his debtor, who owned the land, conveyed it to him by deed. But, on the thirteenth of March, four days before F.'s deed, C., another creditor of the owner, recovered a judgment against him in the county where the land lay, and caused execution to issue thereon, under a levy of which he bought the land, and now brings suit for it against F. and his tenant. Held, that F.'s attachment, having been prosecuted to judgment, can avail him nothing; and his deed, being subsequent to the rendition and lien of C.'s judgment, cannot hold the land against the latter's title acquired under the judgment.

2. A jury having been waived in the court below, and the cause having been tried on an agreed statement of facts, this court, reversing the judgment below, does not remand the case, but proceeds to render such judgment for the plaintiffs as should have been rendered by the court below.

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

The facts in the case are clearly but fully condensed in the opinion of the court. The suit was originally against Love alone, but Frais came in as landlord of Love, and was made a party defendant.

Robards & Jackson, for the appellants. It may be entirely true that the discontinuance or abandonment of the attachment is accounted for, in a mere rational point of view, by the fact that on the seventeenth of March, 1858, after the levy of the attachment and before the trial of the cause, Frais procured from Hynson a conveyance of the attached property, in consideration of $2,500 of the indebtedness sued for. But how can this avail the defendants in the present cause? Can it have the effect of dating back Frais' deed from Hynson to the issuance of the attachment, or of making his title take effect “““by relation” from that time, so as to destroy the lien of the judgment rendered against Hynson on the thirteenth of March, 1858, under which the plaintiffs in this suit derive title? Did the levy of the attachment divest Hynson of his property in the land, so that the judgment under which plaintiffs claim could acquire no lien upon it?

One or both of these propositions must be established by the defendants before they can derive any aid or support from the attachment proceedings; but both propositions are so unwarranted, if not so preposterous, that we feel exonerated from any effort to refute them.

The simple truth is, that whether through ignorance of the law, “which excuseth nobody,” or from some less creditable and unexplained motive, Frais forfeited and lost whatever inchoate lien he held by virtue of his attachment. If the attachment had been prosecuted to a condemnation of the land, it is true that Frais' debt would have been entitled to priority of payment over the judgment under which plaintiffs derive title. But that is an “if” which never happened. Instead of that inchoate lien being matured and perfected by judgment, it was lost by the acts or omissions of Frais himself, and thus to all intents and purposes became as though it had never been. There is not a single element of fraud, or of surprise, or even of mistake of fact, to generate the semblance of an equity in behalf of the defendants.

The deed under which they claim has no connection with the attachment proceedings, and can derive from those proceedings no possible aid or antiquity. The levy of the attachment did not divest Hynson of his title to the land, nor prevent the judgment of March 13 from taking lien upon it. That...