Russell v. McCampbell

Citations

• 29 Tex. 31

Syllabus

<p>Upon the principle ruled in Foster & Go. v. Ckamplin, ante p. 22, it is no objection that an appeal bond is not under seal. (Paschal’s Dig., Art. 5087, Note 1114.)</p> <p>The 12th section of the act of 27th January, 1842, about executions, reads as follows: “Whenever final judgment shall be rendered by any of the courts of record of this Republic, it shall operate as a lien on all the real estate of the defendant, situate and being in the same county where the judgment is rendered, from the day of the date of the judgment: Provided, That said lien shall cease to operate if execution be not issued out within twelve months from the date of the judgment. (Paschal’s Dig., Art. 3783, Note 873.)</p> <p>The statute, not the parties, creates the lien, and it cannot be enlarged or extended by agreement of the parties.</p> <p>By its own terms, a judgment lien was made to operate from the day of the date of the judgment for one year, and will be lost, or “will cease to operate,” if execution be not issued out within twelve months from the date of the judgment. (Paschal’s Dig., Art. 3783, Note 873.)</p> <p>If execution be stayed twelve months, the lien will still commence at the date of the judgment, and it will cease at the end of twelve months from that date.</p> <p>The 12th section of the act of 5th February, 1840, reads as follows: “ Whenever final judgment shall be rendered by the supreme, district, or county courts of this Republic, it shall operate as a lien on all the property of the defendant, situated and being in the same county where judgment is rendered, from the day of the date of the judgment: Provided, That said lien shall cease to operate if execution be not issued out within twelve months from the date thereof, and due diligence be not used to collect the same.” (Paschal’s Dig., Art. 3954, Note 936.) This has been construed to mean, that execution must be issued out continuously from term to term, and if this be not done, the lien will be lost.</p> <p>Altho