Hargrove v. De Lisle

• Decision Date: 01 January 1869
• Citation: 32 Tex. 170
• Parties: R. H. HARGROVE v. L. C. DE LISLE AND ANOTHER.
• Court: Texas Supreme Court

32 Tex. 170

R. H. HARGROVE

v.L. C. DE LISLE AND ANOTHER.

Supreme Court of Texas.

1869.

1. A person who bought land while it was subject to the lien of a recorded judgment was chargeable with constructive notice of such lien; and such a purchaser, in 1864, was also chargeable with notice of the laws then in force suspending the collection of debts by execution until six months after the close of the war, or twelve months after a treaty of peace.

2. By order of Provisional Governor Hamilton, and by ordinance of the convention of 1866, and by act of the legislature of 1866, the collection of debts by execution continued to be suspended until this court, by a judgment rendered in February, 1868 (Jones v. McMahan, 30 Tex. 719), declared the unconstitutionality of the stay law of 1866.

3. Though a judgment creditor might be chargeable with negligence in not having his judgment re-transcribed before its lien expired, yet a purchaser who bought land of the judgment debtor while it was subject to the lien of the judgment, and who thereby placed himself in the attitude of the debtor himself, can not avail himself of such negligence of the creditor.

4. This court does not affect ignorance of the historical act of secession, and it recognizes the impracticability of executing the process of the United States courts after that act and down to the close of the war.

5. So, also, this court takes judicial cognizance that the war was not officially proclaimed at an end by the president of the United States until the 20th of August, 1866.

6. A levy in February, 1861, of an execution emanating from a judgment of a United States court, created a lien which subsisted, it seems, without sale or further process, until the issuance of another execution, in May, 1867; and a person who, in 1864, purchased the land levied on was chargeable at the time of his purchase with constructive notice of the levy and its lien, and could only acquire title subject thereto.

7. A person who bought land in 1864, with constructive notice of such a lien, assumed, with respect to the land, the exact position of his vendor, the judgment debtor, and can not claim that the land has become exonerated of the incumbrance, by the failure of the judgment creditor to have the judgment re-inscribed before its lien expired. Had he bought the land after the lien had lapsed for want of a new registration of the judgment, he might have occupied a different attitude.

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

The facts sufficiently appear in the opinion of the court.

S. P. Donley, for appellant. In Robinson v. Green, 6 How. (Miss.) 223, it is said that a judgment is a lien, and it can only be defeated by showing that it has been lost by gross negligence, or by giving time; and the showing for this purpose must come from the party who wishes to avoid it. In the case now under consideration, the judgment may not have operated as a lien, because not recorded; but it is contended that a levy on land by virtue of an execution does create a lien of equal force as a judgment when recorded, while the statute required judgments to be recorded.

In Locke v. Coleman, 2 Mon. 14, it is said, “there were several executions actually levied on the house and lot, and remained unsatisfied; and which, we conceive, operated as a lien theron.”

“Nothing but actual payment of the debt will release the property levied on from the lien by which it is held.” Vincent v. Perry, 1 Harp. 388.

In Hervey & New v. Champion, 11 Humph. 569, it is said that the lien of a judgment or execution would have rendered the deed in question a nullity as against the execution.

The lien of a plaintiff in execution is not affected by a sale of the property after the levy. Holberson v. Harrell, 19 Ala. 753.

The lien of a judgment which has not become dormant is not lost by laches in issuing execution. 27 Ala. 156.

It is held in Mercein v. Burton, 17 Tex. 207, that an execution is a lien after levy.

On these authorities it is submitted that the levy of the execution of Seaman, Peck & Co. against Bradfield, in 1861, created a lien on the lands and property levied on and that lien existed until the execution was issued in 1867, and was again levied on the land.

Counsel proceeded to discuss the acts and ordinance suspending the statutes of limitation, and their bearings upon this case.

That a judgment of a United States court is a lien throughout the district, he cited Massengill v. Downs, 7 How. 760;Clements v. Berry, 11 How. 411;6 Barr, 504; 6 Pa. St. 504.

W. Stedman, Poag & McKee and Penn & Burke, for appellees, after stating the case, proceeded as follows:

The next question to which we will invite the attention of the court is, was the rendition of the judgment in favor of Seaman, Peck & Co. against William Bradfield & Co., a lien on the property in controversy? Second--was the levy of the execution that issued on said judgment a lien on said property? And, third, if it was, was it destroyed, waived or lost; and, if so, then, by whose act? To the first question we answer, it was not. See act of 14th of February, 1860. To our mind it is clear that, according to this act creating liens, the simple rendition of a judgment in the United States court, in this state, is not a lien unless the judgment was recorded in the county where it was rendered, or recorded in the county where defendants' land lay. The lien of judgments in the circuit court of the United States is derived entirely from the state laws, and when enforced as a lien, it is done on the authority of state laws. Legislative acts in relation to judgment, are rules of property, and, as such, binding on the federal courts. Tarphy v. Hamer et al. 9 Smedes & M. 310. In those states where the judgment and execution of state laws create a lien only within the county in which it is rendered, a similar proceeding in the United States circuit court would create a lien to the extent of its jurisdiction. Massingill v. Downs, 7 How. (U. S.) 766. As to matters of liens, there is no difference between judgments of the state court and those of the United States court. Andrews v. Wilks, 6 How. (Miss.) 554. The process, both mesne and final, in the district and circuit courts of the United States, being confined to those of the different states in which they have jurisdiction, the lien of the judgment on property, within the limits of that jurisdiction, depends also upon state law, where congress has not legislated on the subject. William v. Benedict et al. 8 How. (U. S.) 111. It is not pretended by appellant that there is any act of congress affecting this question.

In answer to the second question, appellant in his brief says: “That a levy on land constitutes a lien, there seems to be no doubt.” In support of this proposition he cites the cases of Mercein v. Burton, 17 Tex. 206;McMiller v. Butler, 20 Tex. 404; Branch v. Lowry, Galveston, 1868. The case of Branch v. Lowry we have not been able to see, but do not think it sustains the position contended for. The other cases cited by counsel, the court will see, upon an examination of these authorities, will not sustain the proposition as announced by counsel. In the first case the levy was made upon two slaves, in the second the lien existed by virtue of the judgment. Under our statute of liens, 14th of February, 1860 (which was in force when the judgment of Seaman, Peck & Co. against William Bradfield & Co. was rendered), creating judgment liens, there can be no liens on real estate, except in the manner and mode provided for by said act. If it should be held that the levy of said execution did create a lien on said property, then we say that it was a special lien and not a general lien, that a general lien is a matter of record of which the purchaser is bound to take notice. This is the principal difference between judgment liens and execution liens--the one is a matter of record, and the other is matter in pair. Meclin v. The Planters' Bank, 4 How. 139.

If the state of the country was such as the counsel would have the court to believe, the marshal and his deputies having abandoned their offices and gone into the army and the federal court suspended, then its records and proceedings in 1864 were not accessible to the appellee, by which he could possibly have notice of this judgment and levy of Seaman, Peck & Co. On the trial below the plaintiff did not attempt to show that the defendant ever had any knowledge of the existence of said judgment or levy??

We now say that Seaman, Peck & Co., by consenting to postpone the sale on the 5th day of March, 1861, lost their lien (if they had any lien by virtue of said levy) that had been acquired by the levy of the 5th of February, 1861. It has been repeatedly held by the courts of this country, that if an execution is delayed by the act of the plaintiff, it never acquires a lien as against one of a junior date, or if it does, the lien is gone as soon as the interference of the plaintiff commences. If the course of the law is arrested by direction or approval of plaintiff, it is the same as if no execution had issued. The legal presumption is, that the execution creditor intended to favor the defendant. Such holding up is fraudulent against junior judgment creditors. Patton v Hayter Johnson, 15 Ala. 21. An execution held up by the plaintiff in the execution is constructively faudulent as against subsequent execution creditors and purchasers. Kellogg v. Griffin, 17 Johns. 276; Starnes v. Woods, 11 Johns. 111; Russell v. Gibbs, 3 Cow. 394. The lien of an execution after a levy, is destroyed by the interference or directions of the plaintiff to the sheriff to stay the sale as to subsequent execution creditors. Wise v. Darby, 9 Mo. 130. A stay of execution pursuant to an order of the execution creditor may be considered a legal fraud against subsequent execution creditors. Hickman v. Caldwell, 4 Rawle, 380;Commen v. Strembuck, 3 Rawle,...