B. H. Bassett v. C. Proetzel et al., 53 Tex. 569

Gould, Associate Justice. The main question in this case is settled by the decision recently made at the Galveston term, in the case of Barron v. Thompson. That question is as to what diligence was necessary to procure a judgment lien under the act of November 9, 1866, entitled “

an act to prevent judgments from becoming dormant, and to create and preserve judgment liens.” Pasch. Dig., art. 7005. The purport of the decision was that, notwithstanding the issuance of execution within one year from the time when it might have issued, unless due diligence were subsequently used to enforce the lien, it is lost; and the failure subsequently to sue out executions from year to year was held to be a failure to use due diligence, unless there was something in the facts of the particular case to take it out of the rule.

No question coming before the court within the experience of the writer has received a more careful consideration. This case, in which it was first, presented, has been held up for years, and the question was again and again laboriously examined in the light of the authorities. In that examination, counsel for appellant and appellees have borne their full part, aiding the court by able and elaborate briefs and arguments, showing a degree of industry and research deserving commendation.

It has so happened that the question has been first decided in another case, but the present is the case in which it was first presented and mainly considered. There is no disposition on the part of any member of the court to reopen that question, and unless the bankruptcy of the judgment debtor, or the proceedings had by the judgment creditor in the bankrupt court, excused the failure to issue execution between July 1, 1869, and September 10, 1872, the lien of the judgment was lost.

In our opinion, the bankruptcy of the judgment debtor, who had many years before conveyed away whatever interest he had in the lot, and whose

schedule of assets showed no claim whatever thereto, presented no obstacle to the enforcement of the judgment lien against one holding the lot subject thereto. The jurisdiction of the state courts to enforce liens on property in the hands of third parties, notwithstanding proceedings in bankruptcy against the principal debtor, and notwithstanding the discharge in bankruptcy of that debtor, has been often upheld by this court. Elliott v. Booth, 44 Tex., 180;,Boone v. Revis, id., 384; Hancock v. Henderson, 45 Tex., 485; Coffee v. Boll, 49 Tex., 25; Jackson v. Elliott, id., 62; Spring v.

Eisenach, 51 Tex. 434; Doe v. Childress, 21 Wall., 642. The enforcement of the judgment lien by execution from, the court in which the judgment was rendered, could in no wise have interfered with the jurisdiction of the bankrupt court in administering the bankrupt’s estate. But if it were necessary for the judgment creditor to apply first to the bankrupt court before suing out execution, the delay in resorting to the measure is not sufficiently excused. In our opinion the appellant failed to show a valid judgment lien, kept alive by due diligence, and failed to show a title superior to that of defendants.

Accordingly the judgment is affirmed. Affirmed. [Opinion delivered June 21, 1880.]