Borden v. McRae

Citations

• 46 Tex. 396

Syllabus

<p>]. Venditioni exponas.—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 be regarded an open question in this court.</p> <p>2. Same.—The same rule obtains where a levy has been made upon land in a different county from that where the judgment was rendered.</p> <p>3. Lien BY bevy OF execution.—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, and 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.</p> <p>4. Practice—Authority to issue the writ.—The return of the execution exhibiting an unsatisfied levy, and thereby 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 is the writ of venditioni exponas.</p> <p>5. Bona fide purchaser.—A levy upon lands under an execution fixes a lien, which upon sale under the execution, or venditioni ex-ponas, passes title against an unrecorded deed; nor is the title effected by notice after the levy and before the sale.</p> <p>6. Case approved.—Grace v. Wade, 35 Tex., 522, approved.</p> <p>7. It is not within the scope or authority of the writ of venditioni ex-ponas, 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.</p>