¶1The motion of the appellees, to dismiss the
¶2cause for alleged defects in the appeal bond is refused, for the reasons upon which the decision is based in the case of Foster & Co. v. Champlin & Co., decided at this term. [Ante, p. 22.] The appellant and appellees both derive title to the premises in controversy from the same person, L. S. Owings, who appears to have been the owner of the property on the 21st April, 1857, when a judgment was rendered against him for $504 53, in favor of Deedi, with a stay of execution for six months, in the district court of Karnés county, in which the premises are situated.
¶3The first execution was issued on this judgment May 19, 1858, and returned, “No property found.”
¶4The second was issued on the 24th January, 1859, and returned, “No property found.”
¶5The third, on the 7th May, 1859, upon which no return appears.
¶6The fourth, on the 1st December, 1859, and levied on the house and lot in controversy 21st January, 1860, and sold to the appellees on the 6th March, 1860, for $55.
¶7It appears that Owings and wife, by deed dated 26th February, 1858, conveyed this property to the appellant, C. A. Bussell; the deed was duly registered on the 27th February, 1858; and that Bussell was in the possession of the premises at the date of the levy and sheriff’s sale.
¶8There is no charge of fraud in the purchase made by Bussell of Owings, and it will not be denied that his purchase must prevail over that of the appellees, unless the latter title relates back to the date of the judgment, and is made to overreach that of appellant by the lien given by law to the judgment under which they purchased; and the main question in this case appears to be, whether the judgment lien was kept alive, so as to overreach and defeat the purchase of the appellant made in February, 1858.
¶9The court charged the jury, that if the property in controversy was the same sold by the sheriff to thé plaintiffs *38below, and paid for by them, they must find a verdict in their favor, unless it appear that the property was occupied by Owings and family as their homestead at the date of their sale to Russell. A verdict and judgment were rendered in favor of the appelleés, and this ruling of the court is assigned as error. The appellant requested the court to charge the jury, that if it appeared there was more than twelve months’ time elapsed between the date of the judgment in favor of Deecli and the issuance of execution, they must find for the defendant below. This instruction the court refused to give, and it is assigned as error.
¶10Art. 1040, O. & W. Dig., reads as follows: “Whenever final judgment 'Shall have been rendered by any of the courts of record of this Republic, it shall operate as a lien on all the real-estate of the defendant, situate and being in the same county where the judgment is rendered, from the day of the date of the judgment: Provided, That said lien shall cease to operate if execution be not issued out within twelve months from the date of the judgment.” [Paschal’s Dig., Art. 3783, Note 873.]
¶11The language of the law is explicit, and does not admit of a doubt. We believe the statute, not the parties, creates the lien and it cannot be enlarged or extended by agreement of the parties, (13 Tex., 229,) and by its own terms is made to operate from the day of the date of the judgment for one year, and will be lost, or “ will cease to operate,” if execution be not issued out within twelve months from the date of the judgment.
¶12It is contended that the lien dates from the expiration of the stay of the execution. This would do violence to the plain language of the statute itself. And if this were the proper construction to place upon it, then it would be within the power of the parties to tie up the property of the defendant in the judgment for almost any period of time, which the legislature obviously intended not to permit, by requiring execution to be issued within twelve months *39after the clay of the date of the judgment. This lien was intended for the benefit of the creditor, to be enforced as prescribed by law, by suing out execution within a year after date of the judgment; and, if he voluntarily consent to interpose a stay of execution, so that he cannot comply with the condition upon which his lien may be preserved, he would be considered as having waived it.
¶13The first execution was issued thirteen months, less two days, after the date of the judgment; and for that reason we are of opinion, that the judgment lien ceased to operate, and could not be again revived, so as to overreach a bona fide purchaser from Owings.
¶14In order to preserve this judgment lien, it was provided, in the act of February 5, 1840, (Hart. Dig., Art. 1821,) that execution must be issued within the year, and that due diligence must be used to collect the same; which has been construed to mean, that executions must be issued out continuously from term to term, and without it the lien is lost. (1 Tex., 508;) [Paschal Dig., Art. 3954, Note 936.]
¶15And we are inclined to the opinion that, although there is no positive provision in the act of 1842 providing, as the act of 1840 did, that due diligence must be used to collect the execution, such is the common law; but it is not now necessary for us to decide that question. (17 Tex., 620; 13 Tex., 379, 515.)
¶16We are of opinion, that the lien given the judgment of April 21, 1857, was lost and ceased to operate, for the reason that no execution was, issued out within twelve months from the date of the judgment; and that the deed of Owings and wife to Russell was anterior to and registered before the appellees purchased at the sheriff’s sale in March, 1860, and is the better title, from all that appears from the records in this cause. And the judgment is reversed and cause remanded for a new trial.
¶17Reversed and remanded.