Sessums v. Botts

Ogden, J.

On the 9th day of November, 1866, an act of the Legislature was approved, entitled, “An act to prevent judgments from becoming dormant, and to create and preserve judgment liens,” and provides “ that whenever final judgment shall be rendered by any court of record of this State, such judgment shall *348 be a lien on all the real estate of the judgment debtor situate in the county where the judgment is rendered, from the date of the judgment; provided, that said lien shall cease and become inoperative, if execution be not issued upon such judgment within one year from the first day upon which such execution can by law be issued thereon.” And on the tenth day of the same month, an act régulating the collection of debts was approved, which enacts, that on all judgments rendered prior to the first day of January, 1867, the judgment debtor shall have twelve months thereafter within which to pay to the plaintiff, his agent or attorney, one-fourth part of said judgment, and all costs; and that no execution shall be issued thereon until the expiration of the time aforesaid.” This last act was, at the January term, 1868, of this court, in the case of Jones v. McMahan, 30 Texas, 719, declared unconstitutional, and consequently void. And now we consider the only question presented by the record of this case, which requires a decision by this court is, as to the effect, if any, of this act of November 10,1866, over judgments and judgment liens, until the same was declared unconstitutional. The judgment of Ball et al. v. L. A. Bryan was rendered on the thirtieth of November, 1866, and, without doubt, became a lien on all the real estate of Bryan situated in that county; and under the act of the ninth of November, such lien shall continue and be in force until one year from and after the first day upon which execution could by law issue thereon. The question in this cause, therefore, becomes narrowed down to the simple inquiry, when could an execution issue on a judgment rendered on the last day of November, 1886. The act of 1842, and which is now in force, provides, that from and after the rising of every court, it shall be the duty of the clerk to issue execution. But the act of 1866 was an attempt to repeal or amend the law of 1842, and to prohibit the issuance of execution until one year from the date of the judgment. This act passed the Legislature with every formula of law, and was therefore to be *349 presumed to be a valid and binding law, until declared otherwise by competent and legitimate authority.

It is believed that any citizen of the State whose interests are affected by an act which he believes unconstitutional, may, by pursuing a legal course, test the constitutionality of a law; or, if he chooses, may wholly disregard that act as law, but in that case he acts at his peril, and should the act of which he complains be decided to be law, then he must suffer the consequences of a bad judgment or a perverted will. It is therefore deemed advisable for every good citizen to obey whatever may be promulgated by the law-making power as law, until the same shall have been passed upon by the courts of the country in a legitimate and proper manner. If this, then, is the duty of the citizen, and he obeys or submits to whatever has received the legislative sanction as law, then he should be protected in that obedience, or, at least, he should not be deemed guilty of laches, and his rights sacrificed to those who are ready to usurp the province of the judiciary and declare for themselves what is and what is not law. We are not willing to indorse the proposition, in its broadest sense, that a ministerial officer has the right or power to decide upon the constitutionality or unconstitutionally of an act passed with all the formality of law. It is the duty of such officers to execute and not to pass judgment upon the law, and we are of the opinion that the clerk of the district court should have refused to issue execution in violation of what appeared to be a valid and binding law, until the same had been declared void by the tribunal properly constituted for that purpose.

We are not willing to construe the quotation from Cooley’s Constitutional Limitation, page 188, in the same light as the learned counsel for the plaintiff in error appears to have done. It is true that when an act has been declared unconstitutional, then it is as though it had never been; but we do not think that the author in the text, or the cases cited by him, intended to anpounce *350 the doctrine that an unconstitutional law could be no protection to officers or citizens, before the same had been passed upon and adjudged invalid. The law of 1842 may never have been repealed, but most certainty it was not in force during the existence of the act of 1866 ; and, as suggested by appellant’s counsel, the law of 1842, though not repealed, “ may have been stripped of its power and validity for the time being, bound by the hand of usurpation, but by the assistance of' this court it has been liberated and set free, to assert its dominion and majesty.” The act of 1866 was declared to be unconstitutional in 1868, and thereby liberated and set free the act of 1842, which required that execution should issue within one year, not from the date of the judgment, for the year had already passed and the law during that time had not been in force, but from the decision of the court which gave it vitality. We are therefore of the opinion that at the time of the rendition of the judgment in the cause of Ball et al. v. Bryan, there was no law in force which authorized the issuance of execution until one year after the rendition of the judgment; and under the act of ninth of November, 1866, that judgment operated as a lien upon the real estate of L. A. Bryan, until one year from the time when execution might issue. This construction would cause the judgment to operate as a lien for two years from the rendition thereof, and we can see no objection, constitutional or other, to the law in this particular.

It follows that the judgment lien was preserved; and as the execution issued within a few months from the time when it could by law issue, and was levied on the land in question, upon which there was a lien to satisfy the execution, the sale was a good and valid sale, and Botts, the purchaser, received a good and legal title; and that the plaintiff, who purchased the .land in question after the rendition of judgment, and after the issuance of execution, cannot be considered an innocent purchaser *351 without notice, and therefore received no title as against the purchaser under the judgment lien, and execution thereon.

There being no error in the judgment of the court below, it is affirmed..

Affirmed. ■