Woodson v. Collins & Douglas

Stayton, Associate Justice. This' suit was brought by Woodson against Collins & Douglas to remove cloud from title to one hundred acres of land. The appellees disclaimed as to three-eighths of the land, and made a cross-claim to the residue. The cause was tried by the court, and a judgment was rendered in favor of the appellant for three-eighths of the land described in the petition, and for the appellees for the remainder; and a partition was ordered, and from that judgment this appeal was prosecuted. The appellant claimed title to the land through a conveyance made by E. Currie, Sr., to E. Currie, Jr., which purported to have been executed on the 1st of November, 1876, which was not recorded until the 7th of August, 1880. •The appellees claimed through a sale made under a judgment for money, recovered in the district court of the county in which the land was situated, rendered on the 16th day of November, 1877, in favor of Mrs. Collins as executrix of the will of T. P. Collins, deceased, in a suit brought by her against E. Currie, Sr., upon a promissory note, and to enforce a vendor’s lien upon the land in controversy, as well as other land of which the land in controversy formerly constituted a part. The court trying that cause refused to establish and enforce the vendor’s lien, and from that judgment the executrix appealed to this court, and the cause remained here on appeal until the 9th of March, 1880, when it was affirmed. The mandate of this court was filed in the district court on the 9th of August, 1880, and an execution issued in the case on the 18th of September of same year, and was levied on the land in controversy, and it was sold thereunder; and under that sale the appellees claim five-eighths of the land, the other three-eighths having vested in appellant under his purchase from E. Currie, Jr., who had title thereto by inheritance and from a deceased sister. [172] Neither .the judgment of the district court nor of this court was ever recorded. The appellant seeks a reversal upon the ground that the judgment under which the appellees claim did not give a lien upon five-eighths of the land; and upon the further ground that, if otherwise, the judgment would have given a lien upon the land; that Currie, Sr., sold and conveyed the land to E. Currie, Jr., under whom appellant claims, prior to the rendition of the judgment, for a valuable consideration and for a lawful purpose, and that of such sale the appellees and all other persons had notice at the time the judgment was rendered in favor of Collins, executrix, against E. Currie, Sr. The court below held that the judgment against E. Currie,' Sr.", gave a lien, upon five-eighths of the land, and we are of the opinion that such ruling was correct. The appeal perfected by E. M. Collins, executrix, in November, 1877, suspended her right to issue an execution, even though there was only a contest over her right to have established and enforced a vendor’s hen; for the judgment was an entirety. By the appeal jurisdiction vested in this court; and while the same continued the executrix was not required to issue an execution to preserve the judgment lien. An execution issued under such circumstances would have been exceedingly irregular, if not void. 3 Tex., 26; Freeman on Judgments, 382. There may be cases in which matters affected by a judgment may be so far severable that an appeal will not prevent the issuance of process from, the district court to enforce some part of a judgment, but the present is not such a case. Under the law in force at the time the judgment in question was rendered, it was not necessary to record the judgment to give the hen (2 Pasch. Dig., 7005); but it is contended that, as the Revised Statutes were in force [173] when the judgment of this court was rendered affirming the judgment, that it was necessary to record the judgment to give the lien. It is true that the judgment of -this court affirming the judgment of the district court was rendered after the adoption of the Revised Statutes, and that by the provisions of title LXI, chapter 1 of the same, record of a judgment is made necessary to give a judgment lien; but it is not believed that the law last referred to controls the, question in this case. The appeal from the judgment rendered by the district court in 1877 did not divest the judgment lien given by the law then in force; it simply suspended the enforcement pending the appeal; and upon the affirmance of the judgment the lien related back to the original judgment. Such a lien was property and could not have been divested by an arbitrary exercise of legislative power. To hold that such was the legislative intention would be to do violence to the well recognized rule of construction, which is that laws are to be held only to have a prospective effect unless there is a contrary intent clearly manifested in the act. No such intent is manifested in the act under which it is claimed that the judgment hen did not exist, because the judgment was not recorded; but upon the contrary, section 5 of the final title of the Revised Statutes expressly protects rights acquired under former laws. That section provides: “ That the repeal of any statute, or any portion thereof, by the preceding section,. shall not affect or impair any act done, or right vested or accrued, or any proceeding, suit or prosecution had or commenced in any cause before such repeal shall take effect; but any such act done, or right vested or accrued, or proceeding, suit or prosecution had or commenced, shall remain in full force and effect to all intents or purposes as if such statute or part thereof so repealed had re [174] mained in force, except that when the course of practice or procedure for the enforcement of such right, or the conducting- of such proceedings, suit or prosecution shall be changed, the same shall be conducted as near as may be in accordance with the Revised Statutes.” Under the constitution the legislature, would have power to regulate judgment liens acquired prior to the adoption of such regulating statute, and even to require liens which had been acquired through judgments to be recorded within a reasonable time; for this would be but ordinary legislation' affecting the remedy and not affecting the right. When, however, a right has been once acquired, no act not clearly required by law is necessary to be done to preserve such right; and in the absence of a statute requiring judgments rendered before the adoption of the Revised Statutes to be recorded in order to preserve judgment liens, such record is not necessary. To have rendered the judgment which was rendered in this cause the court must have held not only that the judgment rendered in favor of Collins, executrix, gave lien upon five-eighths of the land described in the petition, but must have also held that the conveyance made by E. Currie, Sr., to E. Currie, J'r., Was fraudulent, or that the appellees had no notice of the same prior to or at the time of the rendition of the judgment in favor of Collins, executrix, against Currie, Sr. We have examined the evidence carefully and find nothing which indicates that the deed to E. Currie was not made at the time it bears date, for a full and valuable consideration. The testimony of the two Curries in regard to the matters bearing upon this question is clear and unequivocal, and the facts which preceded the sale, and the subsequent payment of the note to Woods'on, strongly corroborates their testimony; opposed to this is nothing [175] inconsistent, even if we were to disregard the joint relationship of the parties to the property prior to the sale by the father to the son. [Opinion delivered January 31, 1882.] The evidence shows that at the time E. Currie, Sr., made the deed to E. Currie, Jr., the latter was in possession of the land, and that he so uninterruptedly continued by himself or tenants until he sold to thé appellant. Such possession was notice to thé appellees and all other persons; and existing at the time the judgment in favor of Collins, executrix, against E. Currie, Sr., was rendered, and continuing uninterruptedly until the date and record of the deed from E. Currie, Jr., to appellant, was as effective as notice as would have been the record of the deed from E. Currie, Sr., to B. Currie, Jr. The assignments of error clearly raise the question of the insufficiency of the evidence to sustain the judgment; and while a case will not be reversed for the reason that this court might have come to a conclusion-different to that reached by the court below upon the evidence, yet in a case in which it clearly appears that a judgment is without sufficient evidence to support it, the judgment will be reversed. 28 Tex., 185; 4 Tex., 465; 23 Tex., 77; 19 Tex., 243. - We regard this as such a case; and for the error of the court below in holding that the evidence was insufficient to show that the conveyance from E. Currie, Sr., to E. Currie, Jr., was not valid, or that the appellees had no notice thereof, the judgment of the district court .is reversed and the cause is remanded. Reversed and remanded.