Black v. Epperson

Gray, Associate Justice. This is a suit by appellant to enforce an alleged lien of a judgment upon land, which was purchased by appellees some years after the judgment. The cause was submitted to the court below upon demurrers to the petition and upon the pleadings and evidence. The facts alleged in the pleadings and shown in evidence are, substantially, that on the second day of November, 1858, Mrs. Mary A. Reagan recovered a judgment, in the District Court of Titus county, against one James G. Harris, who then owned, and continued until 1864 to own, the lands now claimed by appellees in that county. On one of the tracts, now owned by appellee Lacy, was the homestead of Harris, where he then resided with his family. Execution issued on the judgment on the Just of December, 1858, which was levied on other lands pointed out by Harris, but to which it appears he had no title. This execution, however, was superseded •on the fourth of April, 1859, by a writ of error sued out by Harris, and bond executed on that day by him, with three sureties, one of whom was appellant. By which party or on what day the transcript of record in error was filed in the Supreme Court, does not appear; but it does appear that on the twenty-eighth of April, 1859, the judgment was affirmed, with ten per cent, damages for delay, against Harris and his sureties on the bond. This fact was alleged, and was shown by a mandate issued by the clerk of the Supreme Court on the twenty-fifth day of February, 1868, and filed in the District-Court on the twenty-seventh of that month; and is also alleged and shown in evidence,- by entries on the execution docket, that after the judgment of affirmance, alias executions were issued, viz., on the fourteenth of June, 1859, second of February, 1860, and sixth of September, — 176 — 1860, the last having been returned on the fourth of February, 1861. These entries also showed returns of the sheriff, by which it appeared that on the first of these executions the debtor, Harris, had made a partial payment of $250, and the execution held up by order of plaintiff’s attorney. The second was likewise returned by order of plaintiff’s attorney, and the last simply returned “not satisfied.” . These facts were shown only by reading portions of the entries on the execution docket; for the statement of facts says, “By consent, such portions of the execution docket as referred to the executions issued on said judgment were offered, in evidence,” etc. Neither the original executions, supersedeas bond, nor other paper in the suit of Reagan v. Harris, except the judgment on the minutes, was given in evidence ; nor any reason assigned why they were not produced, such as their loss or destruction. No further proceedings appear to have been had until February, 1868, when the judgment creditor filed the mandate. In the meantime Harris, the judgment debtor, sold the lands in Titus county to appellees, in 1864, including the tract to Lacy, by deed, in which his wife joined, duly acknowledged, proved and recorded. Here-moved with his family to Red River county in that year, acquired another homestead there, and died in 1867. Administration was opened on his estate; a copy of the original judgment, and mandate from the Supreme Court, of February, 1868, were probated and allowed as a just claim against the estate in March, but the estate was insolvent, and had been closed without paying the claim. Of the other sureties on the supersedeas bond, one had died insolvent, and another had become insolvent. Appellant, remaining the only solvent party, without waiting for further issue of execution, paid the debt in June, 1868, to the judgment creditor, and now claims to be subrogated to her rights of lien on the land. — 177 — Appellees, in defense, do not deny that the original judgment of November, 1858, and supersedaes bond of fourth of April, 1859, took lien on the lands of the judgment debtor ; but it is insisted— 1. That the supposed judgment of the Supreme Court in affirmance, and declaring the forfeiture of the supersedeas bond, was unadvisedly entered before the lapse of forty days from the perfection of the writ of error process, and when it was not returnable to that term ; and that therefore the court had not acquired jurisdiction of the cause, so that its entry of judgment was void. As a consequence, it is claimed that the judgment has not been affirmed, that appellant was not liable for its payment, and that by his voluntary payment of the debt he could not be subrogated to the rights of a judgment creditor holding a lien. 2. That if the judgment was properly affirmed, the creditor had lost the lien on the lands owned by the judgment debtor, by his negligence or want of diligence; first, by failure to take out the mandate to the District Court with proper diligence; and second, by neglecting to issue executions from term to term, or at least from year to year. 3. That in any event the appellee Lacy is entitled to protection as to the two hundred acre homestead, part of the Nugent tract, occupied by Harris at the time of original judgment and suptersedeas bond, and when Lacy purchased it in 1864. The district judge overruled the demurrers of appellees, but gave judgment in their favor on the evidence dismissing the petition. Motion for new trial was made by appellant, which was overruled, and appeal taken. The decree also adjudicates matters of controversy between some of the appellees, from which there was no appeal, and of which no notice need be taken. The questions presented' are not without difficulty, arising chiefly from the various changes of the statutes, and — 178 — some incongruity in the opinions construing them, under which the rights of the parties have arisen. On the first question, whether the judgment of affirmance by the Supreme Court in April, 1859, was void for want of jurisdiction, because rendered within forty days after the perfection of the error process, appellees mainly rely on the cases of Stephens v. Thayer, 25 Texas, 341, and Kernaghan v. Hall, 81 Texas, 128. These decisions were made inn cases arising after the repeal of the 6th Section of the “Act concerning proceedings in the Supreme Court,” of the eleventh of February, 1850. (Paschal’s Digest, Articles 1583-1592.) This repeal, enacted on the twenty-eighth of January, 1860, materially changed the law and the former practice under it. Since that repeal the practice has been clear and uniform, and is well stated in Stephens v. Thayer. The paragraph cited from the second case, stating that “ the statutes require forty days after the perfection of an appeal or writ of error to elapse as the least time in which the party is required or permitted to file the record,” if considered alone, is not quite intelligible, and might mislead; but taken in connection with the facts of the case decided, it is not inconsistent with the statute and Stephens v. Thayer. The repealed section required the plaintiff in error, in all cases, to file the record within forty days after .the perfection of his process in error. Under that section the practice was not invariably uniform, but the current of. authority was in favor of a prompt disposition of all cases filed. The decisions in Wheeler v. The State, 8 Texas, 228, and Wilson v. Trueheart, 13 Texas, 287, support the practice as pursued in this case; and in Chambers v. Shaw, 16 Texas, 146, it was even said that the defendant in error may acknowledge service of the citation, and bring up the record, and submit the case to the court as a delay case, or for revision on the merits. Under the practice as then existing, it appears to us clear that the — 179 — court regularly proceeded. Certainly it does not affirmatively appear that there was irregularity. We cannot presume that the record was not filed by the plaintiff in error; nor that he did not appear by counsel. Every presumption must be indulged in favor of regularity in all things necessary to the jurisdiction of a court having exclusive jurisdiction -of the subject. Nor do we think that the judgment is liable to attack by other parties and in another tribunal for the supposed irregularity of proceedings. A domestic judgment on a subject within the jurisdiction of the court, and apparently regular on the record, is to be taken as conclusive of the regularity of proceedings by which jurisdiction was acquired over the parties (Lawler v. White, 27 Texas, 250; Withers v. Patterson, 27 Texas, 491; Mitchell v. Meuley, 32 Texas, 460); unless it be attacked in a direct proceeding for that purpose, as was done in the cases cited by counsel — Martin & Ward v. Latimer & Bagby, 4 Texas, 335, and Mills v. Bagby, 4 Texas, 320. The judgment of affirmance having been rendered, we are of opinion that appellant, being thereby liable as surety for its payment and to execution against him, might voluntarily pay it at any time, and become subrogated to the rights of the creditor. He was not bound to await the action of the creditor, but might for his own protection pay the debt and control the judgment and execution. If, however, he chose to wait, and any laches of the creditor occurred, by which his lien or other security should be lost, and the surety then pay the debt, he would only be subrogated to such rights and securities as the creditor then had. The laches of the creditor would reasonably be imputed to him also, because he might by earlier payment have himself exercised the necessary diligence to secure and protect himself. He stands in the place of the creditor from the time of his payment, as an assignee would. The whole subject is thoroughly — 180 — discussed and authorities collated in Hare & Wallace’s Ho tes to the case of Dering v. Earl of Winchelsea, 1 White & Tudor’s Leading Cases in Equity, 143-150. On the second question, whether the judgment creditor or appellant had lost the lien of the judgment by laches in enforcing it, the chief difficulty arises from the meagre evidence on that subject, which the appellant, as plaintiff, ought to have made fuller and clearer, or have shown why it was not in his power so to do. After the writ of error and supersedeas bond, of course no further execution could lawfully issue on the judgment of the District Court; nor after affirmance, had the clerk authority to issue execution, until official evidence of the fact had been filed in his office. The official evidence directed by the statute is a mandate issued by the clerk of the Supreme Court (Paschal’s Digest, Article 1571), which mandate he is “not compelled to issue and deliver, * * or certify the proceedings to the proper court, until all of the costs accruing on the cause in the Supreme Court shall have been paid.” Itxis left optional with the clerk by the statute (Paschal’s Digest, Article 1568); and therefore it was the duty of the creditor to procure and file the mandate in the District Court, within such time as might be necessary to preserve the lien of his judgment by issue of execution. What was done % The only evidence on that point is, that a mandate was issued and filed in February, 1868; that an execution, however, had issued from the District Court in June, 1859, less than two months after the affirmance of judgment; that on this execution the principal debtor made a considerable payment, and two other executions were issued and returned. It is insisted, that as no other mandate was in evidence, the legal presumption is, that no other had been issued; and it is true that a party is presumed to have given the best evidence he can. Had there been no other evi — 181 — dence, that would be the reasonable conclusion; but how can that conclusion be reconciled with the prior issue of executions and payment by the debtor? The conclusion insisted upon involves the presumption, that the clerk violated his duty and acted without authority; and also, that the debtor acquiesced in this illegal proceeding to his injury — not only by the payment, but by taking no steps to set aside the subsequent executions against him for nearly two years. Such a presumption cannot be reasonably maintained; but, on the contrary, the legal rule is, that presumption arises in favor of the regularity and due performance of duty by an officer, in the absence of negative evidence. Because a mandate was issued in 1868, does not negative that one had been issued. There is no prohibition on the issue of a second mandate, and therefore its issue is not inconsistent with the fact that á former one had issued and was lost, mislaid, or destroyed. We therefore conclude that a mandate was issued and filed before the issue of execution in June, 1859. The other point on this question of laches relates to the failure to issue executions from February, 1861, until the death of the judgment debtor in 1867, or against his sureties on the supersedeas bond until the payment by appellant in June, 1868. It can only relate to this period; because, if, as we have said, the mandate was issued and filed, the executions in June, 1859, and subsequently running to February, 1861, were regularly issued, and in due time to preserve the lien of judgment, given by the execution act of 1842. (Pas. Dig., Art. 3783.) The lien of the original judgment was preserved by the issue of execution within one month, in December, 1858; and that of the supersedeas bond (which had the “force and effect of a judgment against all the obligors,” according to the statute, Paschal’s Digest, Article 1495, and decisions in Robertson v. Moorer, 25 Texas, 428, and Berry v. Shuler, 25 Texas Sup., 140) was pre — 182 — served by.the executions issued in 1859 and 1860, running to February, 1861. At that date, then, the judgment was not dormant nor the lien lost. Did any subsequent want of diligence produce that result % 1. As to the dormancy of the judgment. It continued in vigor for one year after the last execution — that is, until February, 1862 — according to the opinion of Chief Justice Hemphill, in De Witt v. Jones, 17 Texas, 623, where he said that “the judgment becomes as dormant by failure to issue executions in the subsequent as it does in the first year after its rendition, and the right to revive exists in either case. In the first, it is given by the statute ; in the latter, from analogy to the rule prescribed in the statute.” He referred to the 2d Section of the act of .limitations of February 5, 1841. (Paschal’s Digest, Art. 4608.) This opinion was expressed in 1856, in a case arising under the execution act of 1842, as does the present case. We concur in that opinion, as affording a reasonable rule under the law existing prior to the act of February 14, 1860, “to prevent judgments from becoming dormant, and to create and preserve judgment liens.” (Paschal’s Digest, Articles 3962-3965.) The first section of that act provides, that “whenever judgment shall be rendered in any court of this State,” execution may be issued thereon by the court or clerk, and that “said judgment shall not become dormant unless ten years shall have elapsed between the issuance of executions on the same.” These provisions seem to impty, first, the issue of execution on the judgment; and second, that after such issue the lapse of ten years between executions would be necessary to produce dormancy of judgment. It manifests the intention of the Legislature to extend the time of diligence after one or more executions had issued within the year. It is a more liberal and reasonable policy than had previously prevailed. We incline to the opinion that — 183 — this first section was intended to operate prospectively in favor of prior judgments then having vitality, as well as to subsequent judgments; while the 2d Section, requiring judgments to be recorded before any lien should attach, by its express language only related to judgments “hereafter rendered.” The last provision of the 1st Section of the act of 1860 is retained by the 3d Section of the act, having the .same title, of the ninth of November, 1866 (Paschal’s Digest, Art. 7007), though the terms of it are clearer and evidently do apply to both prior judgments not then dormant and to subsequent. If this provision of the act of 1860 operated upon prior judgments then in force, and extended the rights of creditors holding them, continued as it was by the act of 1866, then it would plainly appear that the" judgment here in question would not become dormant until ten years from return of last execution in 1861. But we shall not rest our decision now on that ground, as there are others which sustain its vitality, and are equally applicable to the question of lien. The judgment may not be dormant, and yet the lien on land be lost by neglect to issue executions, or failing to record, etc. Was there diligence sufficient to preserve the lien after February, 1861 ? The execution acts of 1840 and 1842, and the 1st Section of judgment act, before cited, of ninth of November, 1866 (Paschal’s Digest, Art. 7005), are similar in giving liens on land in the county where judgment is rendered. They are also similar in the requirement of issue of execution within the year after rendition; but the acts of 1842 and 1866 do not contain the further provision of that act, that “ due diligence be used to collect the same.” The decisions under the act of 1840 have been, that after the first execution and year, there should be continuous reissues from term to term of the court. Any hiatus would be fatal to the lien, so that subsequent executions could not attach to lands sold after the judg — 184 — ment. The first and only case arising and wholly decided under the act of 1842, which has fallen under observation, is Russell v. McCampbell, 29 Texas, 39. In the opinion is an expression to the effect that the same diligence is requisite by that act as had been required by the decisions under the act of 1840 — that is, the issue of executions from term to term — and that it was believed such was the common law. This expression was avowedly made when not necessary to the decision of the case, which had already been put on a stronger and clearer ground. It is therefore deemed only the opinion of the justice who delivered it, and is only entitled to weight as such. While we entertain great respect for his opinion, we are not prepared to give assent to that view. ■The requirement of “due diligence to collect,” .was a strong expression of legislative intent. Its omission in the subsequent aqt may mean a change of that intent, and that a less degree of diligence • should be required. Nor do we find that the common law of England had established such a rule; indeed, by the common law no lien on lands was given to a judgment for debt. Such judgment could only be enforced against the person, or the goods and chattels of the debtor, or the “rents and profits of his lands,” or under statute by writ of elegit, which gave lien on a moiety of the debtor’s freehold land, for possession and application of rents. (3 Cooley’s Blackstone, 418, et seq.) The diligence required to preserve that lien was not so great as required by our statute. (2 Tidd’s Practice, 935.) Those processes afford us no satisfactory guide for decision on this subject, and is unnecessary to our decision in this case. The objection to the failure to issue execution after February, 1861, is to be considered with reference to the condition of the State, its officers and people, at that period, and subsequently, which are historically, by legislative and executive action, and proceedings in all our courts, State and Fed — 185 — eral, judicially known to us. In view of tlie political excitement then prevailing, involving the highest interests of all the people, — the war -which immediately ensued, and was continued until long after arms had been laid down, and in a quasi form long after the President’s proclamation of peace, we cannot reasonably hold that any creditor should be held to the strict rule of diligence to preserve his rights as in times of quiet and peace. A creditor who, in 1861, sought to enforce executions for debt as rigidly as the law authorized, would have met with little sympathy or aid. We cannot ignore the then state of affairs, and cannot in conscience hold there was laches or want of diligence in not issuing execution from term to term of court. Surely in-such circumstances a delay of one year would not be deemed laches. Within that period the stay law of Decembér 7, 1861, was enacted; was renewed and extended in December, 1863 ; enforced by military executive orders in 1865, and protracted by Convention of 1866; modified and renewed by Legislature of 1866; and continued in effective and practical operation until February 24, 1868, when the unconstitutionality of such acts was decided, in Jones v. McMahan, 30 Texas, 719, and Luter v. Hunter, 30 Texas, 688. This latter case also decided that the war suspended the laws of limitation. So it has been held in several cases, that the diligence required to charge the drawer of a bill, or endorser of a promissory note, by suit, was suspended by the stay laws of 1861 and 1863, until the courts were opened in September, 1865. These cases are all reviewed, and the correct result attained, in Stratton v. Johnson, 36 Texas, 90. As to the diligence required of judgment creditors to preserve their liens and prevent dormancy, it was held, in Phillips v. Lesser, 32 Texas, 741; Sessums v. Botts, 34 Texas, 335; and Cravens v. Wilson, 35 Texas, 52, that the vigor and lien of judgments rendered in 1865 and 1866 — 186 — were preserved by executions first issued in 1868, within one year from the decision of the Supreme Court on the stay law of 1866, and that the practical effect of that law excused the failure to issue execution within the year from judgment. The same principles were applied to the case of judgment in July, 1861, with stay of execution to February, 1862, on which no execution issued until early in 1868, as against judgments recovered in November, 1867; and it was held, that the judgment of 1861 did not become dormant by reason of the stay act of December, 1861, and subsequent stay measures, and that it took lien by virtue of the judgment act of November 9, 1866, which last point is further than is necessary to go in the present case. (Moore v. Letchford, 35 Texas, 185; see also Gardner v. Spivey, 35 Texas, 508.) The same principles are also maintained and applied, as to the effect of the war and subsequent stay acts upon the rights of the creditor under a judgment, in March, 1861, upon which no execution was issued until January, 1869, in the case of Williams v. Murphy, 36 Texas, 167. In citing that case, however, we do not wish to be understood as approving what is stated there, and in other cases there cited, as to the effect of the act of 1860 being a repeal of the 12th Section of the execution act of 1842, and 2d Section of limitation act of 1841, which required an execution within the year to prevent dormancy of judgments, and also to preserve lien of judgments rendered before February 14, 1860. We do not perceive such manifest inconsistency between these acts as was expressed in Scogin v. Perry, 32 Texas, 21, and other cases following it. Upon reason and authority, we are of opinion that appellants judgment and its lien were kept alive and in force by executions until February, 1861, and were preserved in force by the war and various ensuing stay measures, without further act by the creditor, until one — 187 — year after February, 1868, when those measures were-finally decided unconstitutional. The judgment was not dormant, nor had the lien been lost, in 1864, when appellees purchased; nor when appellant paid it, after Harris’ death, in June, 1868, as his surety, and thereby became subrogated to the rights of the creditor, Reagan. It follows, that the court below was right in overruling the demurrers, but erred in refusing relief on the evidence, and dismissing the suit. The judgment must, therefore, be reversed; but we are not so clearly satisfied with the evidence about the mandate in 1859, and subsequent executions. This court doubtless has power to reform when the cause is submitted on evidence, but is not required so to do; and it is deemed inadvisable to exercise such power where the evidence is not as clear as the party ought to-have produced from the records, or secondary for them, and where no reason is shown or alleged why 'such evidence was not adduced. In this view it becomes proper to notice the further defense of the appellee Lacy, as to the homestead of the debtor, Harris, on the land, and not liable to sale under the judgment. We think it clear that the debtor had the right to sell his homestead and acquire another with the proceeds, or otherwise, without thereby subjecting it to his general debts, or any lien not made specific by valid contract. The purchaser, Lacy, took good title for the two hundred acre homestead, and it is not liable to appellant’s judgment. The judgment of the court below, as between appellant and appellee, is reversed and remanded. Reversed and remanded.