#### W. M. Newton v. Chas. Heidenheimer & Co.

(No. 1583.)

Appeal from Galveston County.

Opinion by

White, P. J.

§ 126. *Jurisdiction of county court; attachment lien upon land; construction of statute, and of the constitution; Shandy v. Conrales & Logeman, W. & W. Con. Rep. 238, approved; Hillebrand v. McMahan, 59 Tex. 450, discussed.*A single question only is presented on this .record. It is, “Has the county court, under our constitution and existing laws, jurisdiction to enforce a lien upon land created by the levy of an attachment ? ” . Identically the same question came before us in the case of Shandy v. Conrales & Logeman, and we held that a proceeding by attachment, when land is levied upon by virtue of the writ, was a suit to foreclose a lien upon land, and that the enforcement of such a lien was beyond the jurisdiction of the county court. [W. & W. Con. Eep. § 238.] Since our decision of that case, a similar question with reference to the jurisdiction of justices of the peace to enforce liens created by the levy of writs of attachment upon land, has been adjudicated by our supreme court in the case of Hillebrand v. McMahan et al., and wherein they expressly hold that justices of the peace have such jurisdiction. [59 Tex. 450.] A county court, with jurisdiction to try civil and criminal cases in this state, was the creature of the constitution of 1866 [art. IV, Const. 1866, sec. 16], which, in express words, gave the district court original jurisdiction of all suits for the enforcement of liens on land. By the act of 1866, to organize them and define their powers, county courts, so far as land was concerned, were only inhibited from trying actions of trespass to try title, or to enforce vendors’ liens. [1 Pasch. Dig. art. 6068.] Its existence was but a brief one, the reconstruction policy of the general government having swept it away with the constitution *117which created it. Our present constitution again revived, or recreated, it in 1876 as a tribunal with civil and criminal jurisdiction. We only allude to this history to show that, in so far as county courts' are concerned, the same argument in favor of their jurisdiction in the matter before us,—to wit, that it was long exercised, never questioned, or disputed,— was recognized, and acquiesced in by the superior courts, does not obtain as in the case of justices’ courts. And we might - rest this portion of the argument right at this point, and claim that, in so far as county courts were concerned, the question of their jurisdiction to enforce such liens was one of first impression growing out of the constitution and laws of 1876. Aside from this consideration, however, we are free to admit that the other reasons insisted upon in Hillebrand v. Mc-Mahan, maintaining the jurisdiction, are applicable alike to both courts, and, if good in the one instance, are good in the other.

Defining the jurisdiction of the district court, section 8 of article V of the constitution, amongst other things, declares that it shall have original jurisdiction “of all suits for the trial of title to land and for the enforcement of liens thereon.” In section 16, providing the jurisdiction of the county court, nothing is said about the enforcement of liens upon land, though jurisdiction of suits to recover land is expressly denied. And section 19, with regard to justices ofi the peace, makes no mention of land or the enforcement of liens thereon.

Turning to the statute, article 1117 (R. S.) gives to the district court jurisdiction “ of all suits for the trial of title to land, and for the enforcement of liens thereon.”

Article 1164, Revised Statutes, declares that the county court shall not have jurisdiction “ of suits for the recovery of lands, nor of suits for the enforcement of liens upon land.”

Article 1539, Revised Statutes, gives justices express “power to foreclose mortgages and enforce liens on personal property, when the amount in controversy is *118within, their jurisdiction,” while article 15-M expressly denies their authority “for the trial of title to land, or of suits for the enforcment of liens on land.”

In Hillebrand v. McMahan the position taken by the supreme court is, that the ‘ *‘ liens*” contemplated by these various provisions, constitutional and statutory, may be defined to be, and must be understood “tobe, such as were created by the act of the parties, (such) as existed before the suit was commenced, and formed the basis of it, or an important part of the same; such as mortgages, deeds of trust, vendors’ and mechanics’ liens, and others of like character; they are such as must be alleged in the pleadings of the cause wherein the foreclosure is sought.” That other liens, created by the levy of an attachment, etc., which did not exist at the commencement of the suit, but were acquired during its progress, did not arise from consent of parties, but were fastened unwillingly upon the property of the defendant by reason of certain legal measures pursued in court by the plaintiff, such as were not the foundation of the action, but were incidents arising during its progress; where no allegations in reference to them in the pleadings, nor prayer for their enforcement, were necessary, even after they had been created; where no evidence could be introduced on the trial in reference to them, and no finding of them in the verdict was required, but where the judgment of the court foreclosing them followed as matter of course upon the recovery of money for which the action was brought; that with regard to all such liens these provisions of the constitution and laws could not apply.

In an able opinion of Presiding Judge Walker, of the commissioners of appeals, in the well considered case of Scripture v. Kent, a different doctrine to that above enunciated is expressed. Discussing the constitutional sections above quoted with reference to the jurisdiction of these courts, it is said: “The primary object of the contemplated distribution of jurisdiction evidently was, to remove to that court which possessed the highest orig*119inal jurisdiction, the right to determine suits wherein the interest of the parties in realty was involved. The mere form of words whereby that intention was attempted to be expressed has far less relation to their technical signification, considered in respect to terms of pleading-, or forms of action, than to the vital purpose intended to be effected, viz.: that rights in lands or realty, as distinguished from causes of-action *ex contractu*relating to land, but not involving the right or ownership thereof, or torts, or contracts involving simply the right to the possession of land, without affecting the rights of the parties to the land, should be determined in the district court, and, as now expressed in the constitution, certainly not to be determined in the county court.” And as a conclusion of the whole matter it is said: “Neither the form of the proceeding, nor the nature, de*gree or value of the estate, can affect the question. [W. & W. Con. Rep. § 1056.]

“Is a suit by attachment- levied upon, a suit to enforce a lien upon land? ” This question was answered by us in the affirmative in Shandy 'v. Comales et al., *supra.*It is true that the land cuts no figure, or may cut none, in the case, until the writ of attachment is levied; notwithstanding this, however, the effect of the lien upon it is considered and determined on the trial, ■ because the levy and creation of the lien bring the land, to the extent and for the purposes of the lien, into the suit, as much so as if the suit had been brought to enforce a lien arising directly from a contract of parties. [R. S. art. 119.] This conclusion is not left dependent upon inference, deduction or usage; it is expressly provided by statute that, “should the plaintiff recover in the suit, *such attachment lien shall be foreclosed, as in the case of other liens f*etc. [E. S. art. 180.] This important provision of the law, which is a new rule of practice adopted with the Eevised Statutes, is not discussed, or even cited, in Hillebrand v. McMahan. In our opinion, it fully meets and answers the argument of that case, so far as *120it rests upon the practice as it has heretofore existed in this state. It points out most clearly, also, the fallacy of the argument derived from a supposed similarity of power in enforcing an attachment lien, and a lien created by execution or *fieri facias.*The foreclosure in attachment must be part and parcel of the judgment, and consequently must be part of the case to be found and determined in the suit. It is a necessary part of the case to be found by the verdict of the jury, and to be declared in the judicial act of rendering the judgement. [R. S. art. 1340; Handel v. Elliott, 60 Tex. 145.] The lien must be foreclosed as other liens. There is no similarity between it and a lien created by levy of execution. In the latter instance no act of foreclosure is required; there is nothing to foreclose. A *fieri facias,*instead of being a judicial, is simply a ministerial act, wherein the lien which is created is not and cannot be called in question, or in any manner predetermined by the county judge or justice, because the lien is something which has no existence when the *fieri facias*is issued, nor until it is levied. In the county court its issuance is the act of the clerk, and the judgment simply orders it to issue, without directing’ in any manner how it is to be levied, unless in cases of foreclosure of liens and the like. If land is levied on and sold under it, when issued from the county, or justice’s court, the sale is one by operation of law as well as by act of the court, and title acquired thereunder is, by virtue and operation of law, as valid as though the writ issued from the district court. A justice’s nor a county court has anything to do with the levy and sale of land under their executions. This is the act of the sheriff. An attachment may be “but an initiatory execution, issued before judgment,” but still it brings the land into the case before judgment, and injects into the case an important, and oftentimes one of the most important, matters to be tried in the case, viz., whether the land is subject to the lien. [E. S. art. 1340.] Suppose it is the *121homestead, could not the defendant insist upon and have that question adjudicated in the case? Suppose it is held, in trust for a third party, could not that defense be interposed? If these defenses cannot be availed of in the county court, what becomes of the argument which supports the jurisdiction upon the ground that our whole system abhors a multiplicity of suits to settle a matter in controversy between the same parties? If they can be availed of, would the county court have jurisdiction of the issues? Most clearly not, because the issue would then directly involve the title.

But it is said: “An attachment is but an initiatory execution, issued before judgment, and in anticipation of it. In selling land by virtue of an execution (attachment) issued before judgment, a justice exercises no higher power than in making sale under process issued afterwards. He is, in effect, foreclosing a lien as much in one case as in the other; the one having been obtained by levy of an attachment, and the other by levy of an execution.” This argument is what in logic is called a *peiitío principii.*The land is not sold after judgment by virtue of the attachment, but by virtue of the judgment finding it liable to sale; which judgment, when that fact is found, renders the writ of attachment *functus officio,*and the subsequent sale is by virtue, not of the original attachment, but of the judgment foreclosing the attachment lien.

What is a hen? Mr. Bouvier says: “A hold or claim which one person has upon the property of another as a security for some debt or charge.” “In every case in which property, either real or personal, is charged with the payment of a debt or debts, every such charge may be denominated a lien on the property.” [Whittaker on Liens, p. 1.] “A lien is a right to hold.” *[2*Campbell, 5T9; *4*Wait’s Act. & Def. 315 et seq.] When an attachment is levied upon land, the question is, has the plaintiff the right to hold the land subject to his debt? That question is determined by the court and mry, and, if they de*122termine it affirmatively, the court enforces the lien upon the land. This, the constitution says, can be done by the district court, and this, the statutes say, cannot be done by the county court or justices of the peace in this state.

We might content ourselves with the conclusion thus irresistibly forced upon us, but we have yet to meet, and are confronted with, two plausible, if not powerful, arguments; the one derived from contemporaneous construction, and the other based upon the doctrine *“ ab inconvementi.”*As to contemporaneous construction, we have seen that it has but little, if any, practical application to the county court, as that tribunal is now organized, nor has it any to the new practice with regard to such foreclosures, for the first time adopted in our Revised Statutes. [Art. 180.] We are free to admit that where, in our opinion, a question is one of doubt, the force of contemporaneous judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind. Where, however, no ambiguity or doubt appears in the law, “we think,” says that great law writer, Mr. Cooley, “the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the law makers. Contemporary construction can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its boundaries.” [Cooley on Const. Lim. (4th ed.) top p. 84.]

Upon the other ground, the same learned author says, in a note to the text: “We agree with the supreme court of Indiana, that, in construing constitutions, courts have nothing to do with the argument *ab inconvenienti,*and should not bend the constitution to suit the law of *123the hour.” [Greencastle Township v. Black, 5 Inch 565.] ' “It is highly probable that inconvenience will result from following the constitution as it is written; but that consideration can have no force with me. It is not for us, but for those who made the instrument, to supply its defects.. If the legislature or the courts may take that office upon themselves, or if, under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set any boundaries to the powers of the government. Written constitutions will be more than useless.....My rule has ever been to follow the fundamental law as it is written, regardless of consequences.' If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal.” [Cooley’s Con. Lim. (4th ed.) p. 87, and note.]

Our constitution, as before stated, has expressly given to the district court original jurisdiction to enforce liens upon land [Const, art. Y, sec. 8]; and it has conferred neither a like nor concurrent jurisdiction upon any other court. Under the provisions of sec. 22 of art. Y, the legislature might have changed the jurisdiction of county courts, and enlarged it, so as to have authorized them to foreclose and enforce liens upon land; but it has not done so. Happily, the legislature can still exercise the right to confer the power, if they should deem it necessary to the convenience of parties litigant, and to a due administration of justice. Until they have provided this “sure and safe way” out of the difficulty, we shall feel constrained by our oaths of office, and our sense of official duty, however reluctant we may be to differ from our supreme court, to adhere to our previous opinion, and to hold that, in our opinion, a plain construction of our' constitution and laws forbids county and justices’ courts *124from enforcing or foreclosing attachment liens on land. And so believing, we reverse the judgment of the county court in this case, and remand it for a new trial.

March 12, 1884.

Reversed and remanded.