Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29. Page: 45
ix, 626 p. ; 22 cm.View a full description of this book.
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1867.] RUSSELL V. MCCAMPBELL. 35
date of the judgment, but ceased at the expiration of
twelve months. If execution were not issued, by the
terms of the statute the lien was lost. Was it preserved
by the agreement to stay execution ? We believe not.
The judgment was final and complete on the 21st April,
1857, and no agreement, or even judgment of court, as
shown by the case above cited, can alter or change the
force, extent, or effect of the lien, as determined by the
statute. A lien other than the one provided by the statute
would not be a statutory lien, but one agreed by the
parties, and therefore void. Should the court hold that
the issuance of execution within twelve months after the
expiration of the stay of execution was a sufficient compliance
with the statute to secure and preserve the lien,
we further hold, that the lien was subsequently lost by
the failure of the plaintiff in said judgment to issue execution
from term to term, after the return of the first, by
whicI the defendant's title was relieved from the incumbrance
of said judgment.
The lien from the date of the judgment has two conditions
annexed: the issuance of execution within the year,
and due diligence in collecting the same. The lien is
given by the observance of the first, but can only be retained
by the latter. Diligence consists in the issuance
of execution to each term of the court after the return of
the first. Bennett v. Gamble, 1 Tex. 124; Hall v. McCormick,
7 Tex. 269; Scott v. Allen, 1 Tex. 514; Fessenden
v. Barrett, 9 Tex. 475; Graves v. Hall, 13 Tex. 379.
C. A. Russel also filed a written argument on the same
side.
Albert N. Mills, for the appellees. The judgment under
which the sheriff's sale was made was rendered April
21, 1857, with a stay for six months; execution issued
[35] May 19, 1858; the deed of the judgment debtor to
Russell, February 26, 1858.
Both parties claim under Owings, the debtor; and no
authority is cited by counsel to show that a plaintiff in
trespass to try title must deraign title from the sover45
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas, during the Galveston session, 1867, with an appendix containing the cases of the Galveston session, 1861, etc. Volume 29., book, 1882; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28544/m1/43/: accessed March 28, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .