Schmeltz v. M.

• Decision Date: 01 January 1878
• Parties: CHARLES SCHMELTZ ET AL. v. M. V. GAREY ET AL.
• Court: Texas Supreme Court

49 Tex. 49

CHARLES SCHMELTZ ET AL.

v.M. V. GAREY ET AL.

Supreme Court of Texas.

1878.

APPEAL from Harris. Tried below before the Hon. James Masterson.

May 23, 1873, M. V. Garey and husband, J. E. Garey, sued Charles Schmeltz in trespass to try title in the usual form for lots 2, 3, 4, 7, and 8, in block number 1, in the town of Clinton, and described as on the Harris tract.

Schmeltz pleaded not guilty, and, by amendment, the three years' statute of limitations, as tenant of Reuben Wright, and asked that Wright be called to defend. Same day, Wright made himself a party, and, by cross-action, sought to quiet his title.

On the trial, both parties claimed through R. S. Blount.

Plaintiffs read in evidence--

1. Judgment of District Court of Harris county in favor of W. R. Baker v. J. J. Cain and R. S. Blount, for $209.75, which judgment was recorded October 2, 1862.

2. Order of sale on probate side of District Court, Harris county, to J. W. Lawrence, administrator of R. S. Blount.

3. Return and confirmation of sale. Confirmation April 4, 1872.

4. Deed from Lawrence, administrator of Blount, to E. P. Turner for the lots in controversy, with other lands sold at the same time.

5. Deeds from E. P. Turner to plaintiff M. V. Garey for the lots sued for.

6. Deed by Mrs. E. P. Wright, wife of Reuben Wright, of date November 11, 1873, for the lots sued for to J. E. Garey, the plaintiff.

7. Receipt from Mrs. Wright to J. E. Garey for improvements on lots 7 and 8, of date June 6, 1873.

Also, testimony showing a separation of Reuben Wright and his wife, E. P. Wright, who had married in 1860, and going to show a divorce obtained by Reuben Wright in 1871, by proceedings in Virginia.

Schmeltz and Wright, in defense, read in evidence--

1. The petition and exhibit annexed thereto in the case of W. R. Baker v. J. W. Lawrence administrator of Blount, on which the order of sale was made. The petition sets out the judgment of Baker v. J. J. Cain and R. S. Blount, and alleges that it has been presented to and allowed by the administrator, and had been approved by the court as a claim against Blount's estate; that Blount, on July 26, 1859, had executed to J. J. Cain, his copartner in the firm of “J. J. Cain & Co.,” a mortgage, thereby creating a lien to secure the debts of Cain & Co., which were not then secured by the property of said firm, upon the lands of said Blount in the Rose and Harris grants; that by said mortgage, plaintiff had a lien upon said lands to secure said judgment; praying for an order for the sale for cash of the interest had by Blount in said land at the date of the mortgage, copy of which was made part of the petition.

2. The judgment in the case of Baker v. Cain and Blount, rendered November 27, 1860, and recorded October 2, 1862.

3. Execution issued on said judgment January 21, 1861, indorsed: “Returned April 23, 1861, not satisfied; held up by order of plaintiff.”

4. Deed from Blount to J. G. Spence, for lots 2, 3, and 4, in block 1, of date 30th of March, 1861, recorded same day.

5. Deed from Spence to defendant Wright for same--lots 2, 3, and 4, in block number 1, recorded January 1, 1868.

6. Deed from Blount to defendant Wright for lots 7 and 8, in block number 1, of date December 24, 1863, and recorded same day.

7. Inventory returned by administrator of estate of Blount for “1,000 acres of land on Bray's bayou, valued at $5,000, and other personal property, sworn to, November 27, 1865”; also, additional appraisement of two lots in Houston, sworn to, December 19, 1865.

8. Power of attorney by Reuben Wright to Fred. Gehring, of date December 19, 1865, authorizing him to take care of, rent, and lease his land on Bray's bayou.

It was proven that Gehring leased the lots to defendant Schmeltz, who, as tenant, had occupied the premises about three years; by direction of Wright, the rents had been paid to Mrs. E. P. Wright, &c.

The opinion of the court gives sufficiently the testimony as to the separation and divorce of Wright and wife as affecting the rights of plaintiff under the deed from Mrs. Wright, in evidence by the plaintiffs.

On the points discussed in the opinion, the court instructed the jury--

3. “The judgment first herein mentioned (Baker v. Cain and Blount) took lien upon lots 7 and 8 from the date of its record, and the sale made under order of court had in the case against the administrator of ‘Blount’ passed title to the purchaser at such sale, and is superior to the title of defendant Wright.”

4. “As to lots 2 and 3, the title was acquired by purchase during coverture, and is prima-facie community property, as between Reuben Wright and his wife. When it is clearly established that the separate means of either paid for such acquired property, then, as to said parties, the same would belong to him or her whose separate means went in payment thereof; but, under the evidence in this case, I do not deem it proper to submit the question of separate property.” * * *

Verdict for plaintiffs for the land in controversy, except half of lots 2 and 3, sold by Blount before the judgment of Baker v. Cain and Blount was recorded.

Judgment was rendered accordingly. Defendants appealed.Crank & Webb, for appellants.

I. How far did the judgment in case of Baker v. Cain & Co. affect Wright?

Upon this judgment, one execution was issued. The judgment was rendered November 27, 1860, and the execution issued January 21, 1861. Under the decisions of this court, it was Baker's duty, in order to retain any lien, to have executions issued from term to term. (Bennett v. Gamble, 1 Tex., 124;Shapard v. Bailleul, 3 Tex., 26;Russell v. McCampbell, 29 Tex., 31;North v. Swing, 24 Tex., 193.)

Judged by these decisions, he had lost all claim to a lien; but to this it may be replied, that on the 7th of December, 1861, all laws for the collection of debts was suspended. (1 Paschal's Dig., title STAY LAW, 859.)

And, also, that by the law of 1866 another execution could not issue until the 1st day of January, 1868. (2 Paschal's Dig., art. 7437.)

We are aware that these laws have been held as protecting judgment creditors up to February, 1868, when the Supreme Court declared them unconstitutional. (Hargrove v. De Lisle, 32 Tex., 170;Jones v. McMahan, 30 Tex., 719.)

But we maintain, that by the law of 1866, above quoted, all disability against Baker was removed on the 1st day of January, 1868, and that from and after that day Baker could have caused execution to issue against both Cain and Blount, who composed the firm of J. J. Cain & Co. They were both alive on that day. Cain is still alive, and Blount was alive on the 24th day of December, 1868; for on that day he deeded lots 7 and 8 to Wright. After Blount's death, Baker was entitled to an execution against him, under 1 Paschal's Digest, art. 14, but he never, after the 1st day of January, 1868, took out an execution against the firm, or either member of it, and therefore his judgment was dormant.

We are prepared to be met here by the answer that Baker had put his judgment upon record on the 2d of October, 1862. 1 Paschal's Digest, art. 3963, is a sufficient answer to this. That record of the mortgage was only good for four years, and at the end of that time it lost its force and vitality, under the article quoted; and as it never was “reinscribed,” or recorded again, and as Baker never took out an execution after January 1, 1868, he lost all lien.

The first stay law took effect December 7, 1861, and Baker's judgment was rendered November 16, 1860, thus giving over one year in which to make the money, and yet he had one execution issued between the term of the court at which his judgment was rendered and the next succeeding term, and had that returned held up by his order.

The stay laws were not retroactive, and Baker, before the law of December 7, 1861, had suffered his judgment to become dormant, by failing to use that due diligence required by the laws in force before and up to that date. Therefore there was no virtue in the recording of his judgment in 1862, because all lien had been lost before its record. At the dates of Wright's deeds, in either view of the matter as above presented, Baker had no lien, and Wright acquired a good title.

II. We next consider what effect the judgment of Baker v. Cain & Co., connected with the decree or order of sale obtained by Baker against the administrator of Wright, has upon the title of Wright.

We invite the consideration of the court to the petition in said case, and of the mortgage, a certified copy of which was made part of the petition.

The mortgage recites a dissolution of the firm of J. J. Cain & Co., and that Cain had conveyed six lots in Houston to Blount, and also the property and business of the firm; and binds Blount to hold his three thousand acres of land on Bray's bayou “subject to any debt that may be owing by the firm, and not secured by the property of the firm.” By reference to Baker's petition, it will be seen that he nowhere in it claims that his judgment was a lien, but he sues upon the mortgage, and claims only that he had a lien by virtue of the mortgage.

And the judgment of the court upon his petition adjudicated only a lien under the mortgage. It recites: “It appearing to the satisfaction of the court ….. that the lands described in plaintiff's petition ….. are subject to the lien as claimed in the petition, it is therefore ….. adjudged that the said lien be foreclosed, and that the administrator ….. sell ….. all the right, title, and interest which said Blount had in and to so much of said lands on the said 26th day of July, 1859, the date said lien attached, ….. as may be required to satisfy said lien.”

The effect of Baker's action was an abandonment of any lien under his judgment against Cain & Co., and the judgment of the court was in perfect accordance with the case as the petition made it, even to decreeing, as alleged and prayed for, that Baker had a lien from the 26th day of July, 1859,...