Moore v. Letchford

• Decision Date: 01 January 1871
• Citation: 35 Tex. 185
• Parties: ASA MOORE v. W. H. LETCHFORD.
• Court: Texas Supreme Court

35 Tex. 185

ASA MOORE

v.W. H. LETCHFORD.

Supreme Court of Texas.

1871.

1. The first section of the act of November 9, 1866 (General Laws of 1866, p. 118), enacted that “whenever final judgments shall be rendered in any court of record in this state, said judgment shall become a lien on all the real estate of the judgment debtor situate in the county where the judgment is rendered.” Held, that by this enactment a judgment which had been rendered previous to its passage, as well as those rendered after it, operated a lien upon the defendant's real estate situate within the county where the judgment was rendered; and the retroactive effect of the statute in this respect does not render it obnoxious to the constitutional inhibition of laws impairing the obligation of contracts. Ogden, J., dissenting.

2. After the passage of the act of November 9, 1866, a judgment rendered in July, 1861, though never recorded in the county clerk's office, took lien upon the defendant's real estate within the county; and if the stay law of November 10, 1866, hindered the plaintiff from obtaining execution, the lien of his judgment was not lost. Ogden, J., dissenting. 3. Laches is not imputable to a party while his legal remedies are suspended, or have been taken away by the supreme power of the state; and it is immaterial whether the legislation depriving him of his remedies be constitutional or unconstitutional.

4. See the opinion of Mr. Justice Ogden, for the reasoning and authorities on which he dissents from the principal rulings in this case.

APPEAL from Nacogdoches. Tried below before the Hon. M. Priest.

The material facts of the case are stated clearly and connectedly in the opinion of the court. The instructions given to the jury by the district judge will be found in the argument of the appellant's counsel.

Richard S. Walker, for the appellant, insisted that the first section of the act of November 9, 1866, conferred a lien upon judgments rendered while the act of 1860 was in force, as well as judgments rendered subsequent to the former enactment. After criticising the language of the act, and comparing its several provisions with each other at some length, he proceeded as follows: After establishing the main proposition, that the appellant's judgment was included within the benefits of the act of November 9, 1866, it remains to inquire whether its status at that date was such as to except it from the ordinary rule entitling judgments rendered before that date to have a lien in the county where rendered. Whether, by reason of any act of appellant's of omission or commission, there existed at said date any legal cause why his said judgment should not have a lien. The charge of the district judge placed before the jury insuperable reasons to defeat the attachment of said lien at that period, or at any subsequent date. The law propounded in the charge was as follows:

“Previous to the act of 1860, a judgment creditor, in order to preserve and continue his lien, was required to sue out execution within twelve months from the rendition of judgment, or his lien would be lost. “In 1860 the legislature of Texas changed this rule, and instead of the issuance of execution, the act of 1860 required judgment creditors to have their judgments recorded in the office of the county clerk, and by this act liens were preserved.

In 1866 this act was repealed, and the rule was again changed. By the terms of the act of 1866, judgment creditors, on judgments thereafter rendered, had their liens secured by virtue of the judgment, without any act, on all the real estate of the defendant situated in the county; provided that such lien would be lost on failure to sue out execution within twelve months from the first day that an execution could be sued out by law. “This law of 1866 was an enlarging statute, providing for the record of judgments in other counties, thus extending the plaintiff's lien over the real estate of defendant in other counties. This provision applies as well to judgment creditors before the passage of the act, as to subsequent judgment creditors. The law of 1860 gave the right to creditors to preserve their lien in the county in which the judgment was rendered, and if their lien, thus provided for, was not preserved, it was because of their own neglect. If they suffered their judgments to become dormant under pre-existing laws, they had their remedy to revive. The law of 1866 revives no judgments nor laws.

It is for you to determine, from the evidence, whether the plaintiff had a judgment; whether he preserved his lien, if he had any, by recording the judgment in the office of the county clerk, as required by law, or whether he, by his own neglect, lost his lien, as provided by the act of 1860. You will also determine whether plaintiff, if his lien was lost under the act of 1860, revived his judgment, so as to revive his lien, at any time before defendant's judgment was recorded in Nacogdoches county, or before the levy and sale of defendant and Johnson under their executions. If you find that plaintiff had not lost his lien by failing to record as required, or that he revived his judgment and lien, in some mode prescribed by law before the rights of defendant accrued, you will find for the plaintiff.

As it is required only of those who obtain judgment, after the passage of the act of 1866, to sue out executions, within twelve months after executions could be sued out, the stay law becomes immaterial in this cause, but it having been declared unconstitutional by the supreme court, it cannot be made available for any purpose. If you believe, from the evidence, that defendant acquired title to the property in controversy by purchase, as alleged, while plaintiff had no existing lien upon it, and before the levy and sale of plaintiff, you will find for defendant.”

Much of the charge, it is seen, is devoted simply to giving a summary or abstract of the state of legislation concerning the modes merely by which liens on real estate were acquired, presented as mere abstract propositions, alike applicable to any case.

The portion of the charge which is complained of, misconceived the purport and effect wholly of the act of 1860, and laid the basis for that train of errors which pervaded the entire charge in respect to nearly or quite every legal proposition contained in it, causing false issues to be presented to the jury on every question which it was their province to decide. To begin, the court said that “the act of 1860 required judgment creditors to have their judgments recorded in the office of the county clerk, and by this act liens were preserved. The law of 1860 gave the right to creditors to preserve their liens in the county in which the judgment was rendered, and if their lien, thus provided for, was not preserved, it was because of their own neglect. If they suffered their judgments to become dormant under the pre-existing laws, they had their remedy to revive. The law of 1866 revives no judgments nor liens.”

The charge then proceeds upon the foregoing tests, to submit to the jury whether the plaintiff has preserved his lien under the act of 1860, and if not, that he must have revived his judgment (on the assumption, of course, that it was dormant) before defendant's judgment was recorded, in order to entitle him to recover. Now, in the first place, the court utterly misconceived the act of 1860, in supposing that it (as did all the other acts from 1839 to the present time) gave any lien whatever by virtue of a judgment; merely to preserve a lien, implies the previous existence of a lien. The charge implies that a lien existed, which was to be preserved by recording; that recording the judgment was required by the law, in order to prevent the judgment from becoming dormant; and that such failure to record resulted in the loss of the lien. The plain, simple statement of, or rather reference to, the act of 1860, refutes all of those propositions. The predominant idea apparently in the mind of the court was, that the plaintiff or judgment creditor was required to act, and failing to do so, the judgment became dormant; that inaction was, in the words of the charge, neglect; the effect of which was dormancy of judgment; and that the dormancy prevented the judgment from taking lien under act of November 9, 1866, unless the same should be afterwards revived. The court, however, does not intimate within what period the judgment creditor was, under the act of 1860, required to act, or record his judgment. Indeed, it would involve a curious search to find in the act anything to indicate when the judgment should be recorded, for as the law does not require, but only permits it, for the plaintiff's own advantage, it graciously allows him to forego his privilege just so long as he is willing to jeopardize his own interest, by allowing others to record their judgments in advance of him. He may record his judgment whenever he pleases (the act containing no limitation as to time), or not at all.

The language of the act has already been quoted; a recurrence to it will show that it simply declares that no judgment shall have a lien until recorded, without any restriction as to the time when a judgment creditor may exercise his right. That law gives no lien without a recording by plaintiff, but this law (that of 1866) is just the reverse; it does give lien “whenever final judgments are rendered,” etc. So far as concerns the matter of the judgment becoming dormant, the act of 1860, which has already been quoted, was enacted with special reference to the inconvenient mischiefs existing under the previous laws. Under the acts of 1839 and 1840, which required executions to be issued in a consecutive chain, within twelve months of each other at least (arts. 3053, 3954, Pas. Dig. and see Towns v. Harris, 13 Tex. 515;Graves v. Hall, 13 Tex. 379; Scott v. Rose, 1 Tex. 508; Hall v. McCormick, 7 Tex. 269), inconvenience,...