Nye v. Moody

• Decision Date: 10 April 1888
• Citation: Nye v. Moody, 8 S.W. 606, 70 Tex. 434 (Tex. 1888)
• Parties: NYE <I>et al.</I> v. MOODY.
• Court: Texas Supreme Court

8 S.W. 606

NYE et al. v. MOODY.

Supreme Court of Texas.

April 10, 1888.

Appeal from district court, Wichita county.

Action of trespass by James S. Moody against Thomas C. Nye and others to try title to land, the defendants claiming under an execution sale. Judgment for plaintiff, and defendants appeal.

R. E. Huff and Herring & Kelley, for appellants. Flood, Hunter & Stewart, for appellee.

WALKER, J.

Moody brought an action of trespass to try title of 200 acres of land against the defendants. The title asserted was a deed from W. A. Cassaday, under whom defendants also claimed title, with description as follows: "Two hundred acres of the Chas. L. Harrison one-third league survey, on Wichita river, in Wichita county, Tex., to be run off by the surveyor of said county, fronting four hundred and seventy-five varas on the river, and back for complement of 200 acres to be taken out of my half of said survey, and begin at the upper or lower corner, and run with the upper or lower line of my survey for complement. Field-notes to be attached to this deed by said surveyor, and become a part of this instrument." The deed bore date November 12, 1879, and was duly recorded April 15, 1881, in Clay county, to which Wichita county had been attached for judicial purposes. Moody had Warren, the county surveyor of Wichita county, make a survey with field-notes, which were attached to the deed in August or September, 1882. Stone & Giddings recovered a judgment against Cassaday, December 17, 1880, in the district court of McLennan county. An abstract of this judgment was filed for record and was recorded January 21, 1881, in Judgment Record Book No. 1, p. 5, by the county clerk of Clay county. October 26, 1881, an alias execution was issued on the judgment to Clay county, under which the entire Cassaday interest in the survey, and including the Moody part, was sold. Sheriff's deed was executed, and the defendants showed title under this sale. The case was tried by the judge, and he found as a fact that the abstract of the judgment had not been indexed, and that the lien was not fixed by the record without such indexing. The testimony on which the finding was based was amply sufficient. The abstract had not been entered on the index as the statute required. Judgment liens are regulated by statute. Rev. St. art. 3155, provides what an abstract of judgment for record shall contain. Article 3157 provides that "the county clerk shall file and immediately record the...