LeGierse & Co. v. Getzendaner & Ferris , 1 Tex. L. R. 423 ( 1882 )

Watts, J.

Opinion by To create a judgment lien upon land, under the Revised Statutes, it is necessary to have recorded in the county where the land is situated an abstract of the judgment. In giving the requisites of the abstract, the statute provides that among other things it shall show: “The amount for which the amount for which the same was rendered and the amount still due upon the same.”

Ohe of the questions in this case is as to the effect of an omission to state in the abstract the amount still due upon the judgment. The position, that as the amount for which the judgment was rendered is shown, that the omission would be immaterial, as the presumption would be indulged that the amount for which the judgment was rendered would be the amount still due, is plausible. But when examined in the light of the various provisions of the statute upon that subject, and in connection with former laws with respect to the same, that proposition, however plausible, cannot be maintained.

Formerly the law did'not require the record to show the amount still due upon the judgment; in this particular the Revised Statutes-show a departure from the forme? law. The Legislature intended to effect some purpose by the change, as the presumption will not-be indulged that it would do a useless thing. This idea also'derives support from the provisions of the statute, as to how the record shall show subsequent credits upon or the satisfaction of the-judgment. And also that sufficient space shall be left at the-foot of each recorded abstract for the entry of credits and satisfaction of the judgments, and makes it the duty of the clerk to enter-credits and satisfaction ivhen furnished with the data. ’ •

A judgment lien i's pvirely a creature of, and has no existence except as provided by, statute. It will not be controverted that in creating such a lien the Legislature could affix such conditions, impose such limitations, and give the lien such operation as it might-will. Here the lien is brought into existence by a compliance with-the terms of the statute; that is, a substantial compliance with all the terms, conditions and limitations imposed. The change in the statute was intended to remedy some evil that éxistéd under the former law. That evil was that under'the former law the plaintiff and defendant, by collusion, might secure to the defendant lands as against his creditors by an apparent judgment lien, when in fact that judgment had been satisfied. That being the evil or vice informer statutes, the remedy, so far as applied, becomes a material requirement of the statutes, and unless complied with, no lien, would exist.

As the récord book itself was an index, .that is, so kept that it constituted an index as well as a record, this was a sufficient com-' pliance with the statute in that particular. As shown, the record,. as kept by the clerk, furnished all the facilities for finding any particular abstract that could have been furnished by the keeping of a separate index.

If the abstract had been recorded in all respects as required by law, the judgment would not be reversed on account of the erroneous exclusion of the same. Ingram, the defendant in that judgment, taking the most favorable view of the facts in his behalf, never had any such interest in the land in controversy as would be the subject of seizure and sale, or to which a judgment lien would attach. He could not have maintained an action against Dunn for specific performance or recovered of him the land. At most, as between Ingram and Dunn, it was a verbal agreement to convey land, in consideration of labor to be performed. In the case of Stevens v. Lee, decided at the late Galveston term, it was held that such an agreement could not be enforced.

We award that the judgment of the court below be affirmed.

Report of Commissioners of Appeal examined, their opinion adopted, and judgment affirmed.

Gould, C. J.