Borden v. McRae

Moore, Associate Justice. That a venditioni exponas is a writ of execution, and confers upon the officer to whom it is directed authority to sell land upon which the writ of fieri facias has been levied, cannot now be regarded as an open question in this court. (Lockridge v. Baldwin, 20 Tex., 303; Young v. Smith, 23 Tex., 598, and cases cited.) Bor is it perceived that the fact that the land upon which the fieri facias is levied is situated in a different county from that where the judgment is rendered detracts from the authority of the court to issue the writ, or in any way invalidates the sale of the land under it. It is not within the scope or authority of the writ of venditioni exponas to subject to sale the property to which the general lien of the judgment attaches, but merely that to which a specific right or lien has been acquired by the levy of the fieri facias. It will hardly be controverted, we imagine, that the plaintiff in execution acquires a fixed and certain interest in the land upon which his execution is levied, from the date of the levy, which entitles him to have satisfaction of his judgment, by its sale, which cannot be defeated or interfered with by the defendant in execution, or any one setting up a subsequent right or claim to the land through or under him. By the levy, the land is subject to the process of the court, and liable to sale for the satisfaction of the plaintiff’s demand, and it thereby becomes subject to a lien or specific, charge for this purpose from filie date of the levy, until it is lost or abandoned, or in some way ceases to have vitality or effect. The return of the execution, exhibiting ail unsatisfied levy, and thereby [401] showing property of the defendant in custodia legis for the satisfaction of the judgment, not only authorizes, but requires, that proper process shall issue for its disposal. This process, as has been often said by the court, is the writ of venditioni exponas. When it is considered for how comparatively short a time the statute has authorized judgment liens to be acquired over land'of the defendant, situated in other counties than that in which the judgment is rendered, the suggestion that a venditioni could not legally issue, or warrant a sale, unless supported by a judgment lien, would certainly, if there was reason to believe it correct, be well calculated to excite apprehension and alarm in regard to many titles upon which the owners have heretofore reposed with the utmost security and confidence. In consideration of this fact, we have deemed it proper to directly repudiate the views attempted to be maintained by appellant, and to reiterate our unqualified approval of the previous decisions of the court upon the subject. The court below, in effect, held, by the instructions given the jury, that the protection given creditors against unrecorded deeds by our registration statutes, might, by the record of the deed or other notice of it before the sale of the land under’ the execution, be rendered entirely nugatory and ineffectual. We had occasion, during the last term at Austin, to consider this precise question, and, after a full and thorough consideration of the previous decisions of this court upon the subject, as well as those in other States whose statutes are similar to ours, we came to a directly opposite conclusion to that expressed in the instructions given the jury by the court below in tins case. The elaborate discussion which the subject underwent on that occasion (Grace v. Wade and Mains) renders it unnecessary for us to say anything further upon it now. We might, if we thought it necessary, fortify the conclusion at which we then arrived by other reasons, and support it by additional authorities to those then [402] cited. We refrained from doing this at the time, however, not because we supposed the subject or the authorities exhausted, but because in om- opinion the further discussion of the one, or citation of the other, was unnecessary. The judgment is reversed and the cause remanded. Reversed and remanded.