R. Sampson, Administrator, v. J. M. Wyett and Wife, 49 Tex. 627

Moore, Associate Justice. It is not denied by appellant that judgments of courts of record in this State become dormant, unless execution issued thereon within twelve months after the rendition of the judgment, prior to the enactment of the statute of November 9, 1866, entitled “An act to prevent judgments from becoming dormant, and to create and preserve judgment liens.” But he insists that the common-law rule, that the vitality of a judgment is suspended by failure to issue execution thereon within a year and a day from its rendition, which became the law with us by the adoption of the common law, January 20,1840, and which is, in effect, recognized and reenacted by the second

section of the act of limitations of February 5, 1841, and also by the act of January 27, 1842, concerning executions, .was abrogated by said act of November 9, 1866. Certainly, if the effect sought to be deduced from this last-mentioned statute is such as appellant claims, it must result from some obvious inconsistency or irreconcilable conflict between some of its provisions upon this subject and the previous law; for, unquestionably, this statute contains no direct provision of this kind, and does not purport, in direct or express terms, to make any such change.

But an examination of it fails to show any such conflict between this statute and the previous law regarding dormancy of judgments, that both may not stand and be fully and easily reconciled with each other; nor can we see anything in this act to justify the conclusion that the Legislature intended by ■its enactment to alter the previous law in respect to the matter here in question.

It is, in our opinion, quite obvious that the dormancy which it was the purpose of the Legislature to prevent, was that which previously resulted from the failure of the plaintiff, after issuance of execution within the year from the rendition, to cause execution to issue from term to term, or at least from year to year, as previously required, and not that which results from the failure to issue execution within the year from the date of the judgment. Unquestionably, a different view of this act was expressed by our predecessors in the case of Scogin v. Perry, 32 Tex., 21.

But the construction which the court gave this act in that case, and the case of Williams v. Murphy, 36 Tex., 167, was directly and unequivocally repudiated in the subsequent case of Black v. Epperson, 40 Tex., 163, and impliedly in the cases of Jordan v. Corley, 42 Tex., 286, and Ayers v. Ward, 44 Tex., 549. It is insisted by appellant that Black v.

Epperson should not be regarded as of authority upon the point now before the court, because, as he maintains, it was unnecessary to the decision of the case then before the court, and we are free to admit that the case might have been disposed of without reference to it. At the same time, we think it was sufficiently pertinent to the matter before the court to fully justify it in announcing its opinion regarding it. But if the case of Black v. Epperson might have been decided without a discussion of this subject, so might the case of Scogin v.

Perry, as were most, if not all, of the cases referred to by appellant as supporting and affirming it. Upon the case presented to the court, it did not err in adjudicating it in accordance with the rights of the parties when the suit was brought. The validity of the execution which appellant was seeking to enforce, or the dormancy of the judgment upon which it issued, was in no way affected by the sale of the land as appellee’s property after the bringing of this suit. The purchaser acquired only such title to the land as appellee had. This obviously depended upon the ultimate result.of this case.

If appellant’s execution bound the land, then it was still liable notwithstanding the sale; but if not, appellant had no right to complain; and appellee did not. If appellee had sought to dismiss the suit after the land was sold, a different question would have been presented. It will be time enough, however, to consider it when it arises. The judgment-is affirmed. Affirmed.