The questions arising in this case have reference to the priority of rights of different parties, to the proceeds of a sale based upon different judgments and different executions, rendered and executed at different periods of time.
Scogin’s judgment was rendered in the District Court on the 24th day of October, 1866, and was not recorded.
Other judgments were rendered in 1866, and were recorded in 1866.
*28Scogin’s execution was issued on the 11th day of March, 1868, and was placed in the hands of the sheriff on the 11th day of March, 1868, and levied same day.
The execution of other parties was issued in April, and levied, on the same property, on the — day of April, 1868.
The property was sold by virtue of all the judgments and ■executions; the sheriff returned the proceeds of the sale into coru’t, requesting the judgment of the court as to the application of the money to the different claimants. The District Judge decided adversely to Scogin’s claim, and the legality of the decision is the question for our adjudication.
Previous to the 14th day of February, 1860, a judgment in a court of record operated as a lien on all the real estate of the judgment debtor, situate in the county in which the judgment was rendered, for the payment thereof.
On the 14th day of February, 1860, the Legislature passed an act (Arts. 8962-3965) requiring judgments to be recorded in the office of the clerk of the County Court, in order to create and preserve a lien, renewable every four years.
On the 9th of November, 1866, the Legislature repealed this act and re-enacted the statute making the rendition of a judgment of a court of record a lien on all the real estate of the judgment debtor, situate in the county where the judgment was rendered.
Since the plaintiff did not record 1ns judgment it did not operate as a lien, and since the intervenors did record their judgments, and thus acquire and preserve the lien on all the real estate of the Pacific Railroad Company in the county of Harrison, they are to be preferred to plaintiff, provided the property sold was real estate—and this is the most important question in the case.
“ By the Common Law of England, property is divided into two kinds, namely, real and personal property. Real property consists of land, and of all rights and profits arising from, and annexed to land, that are of a permanent and immovable *29nature, and is comprehended under the words, lands, tenements and hereditaments.” (1 Cruise, Title 1, § 1.)
The statutes of Texas are in accordance with the Common Law of England, and were so before the introduction of the “Common Law of England as a rule of decision.” The act of the 26th of Januaiy, 1839, (Paschal, Art. 1286,) provides that “ Whenever final judgment shall be rendered by any court of record of this republic, it shall operate as a lien upon the lands of the defendant, from the day of the date of the judgment and execution; shall operate as a lien upon the personal property and slaves, from the day on which it issues.”
Since the only title that the owners of real estate in Texas have is a fee simple; and, conversely, those who have the fee simple title, and those only, are the owners of the land, it would follow that real estate and a title in fee simple to real estate, are convertible terms : and it would also seem that one may have an exclusive right to walk or ride over the tract of land of another, without possessing the real estate therein:
The act of the 7th of February, 1861, (Art. 4930,) provides that “ the right of way, secured or to be secured to any railroad company in this State, in the manner provided by law, shall not be so construed as to include the fee simple estate in lands, either public or private. While in some of the United States it has been considered that, by the common law, shares in toll-bridge, canal and turnpike corporations are real estate, latterly it has been thought that railway shares were more properly to be regarded as personal estate. (1 Cruise, 40.)
Bedfield, in his work on railways, page 124, says: “ Questions have sometimes arisen in regard to the precise title acquired by a railway company in lands purchased by them,, where the conveyance is a fee simple. It is certain in this country, upon the principle that a railway company, by virtue of their compulsory powers in taking lands, could acquire no absolute fee simple, but only the right to use the land for their purposes; and it is very questionable whether a railway, in *30such case, is entitled to the herbage growing upon the land, or to cultivate the same, or to dig for stone or minerals in the land, beyond what is necessary for their powers of construction.
The statutes (Art. 4912,) regard “ the road-bed, track, franchise, and chartered rights and privileges one entire thing, and when a forced sale is made thereof it includes the entire line -of the railroad whether in the same county or not.”
We are led to conclude, from the foregoing extracts, that a railroad is not real estate, in the sense contemplated by the statute, and that a judgment, whether recorded or not, did not operate as a lien thereon. A levy, therefore, made by virtue of a proper execution founded upon a valid judgment, would ■create the first lien ; and, when a sale of the road should be ■effected, the proceeds of the sale would be applied to the payment of this execution, in preference to others subsequently received.
But the appellees insist that as more than one year had elapsed after the rendition of the judgment before the execution was issued, the judgment had become dormant and should have been revived before an execution could issue thereon.
The statute of the 9th of Eovember, 1866, page 119, says: -“PTo judgment of a court of record shall become dormant unless ten years shall have elapsed between the issuance of executions thereon.”
This is as sweeping a provision as can be conceived. There is only one way in which a judgment can become dormant, which is a lapse of ten years after an execution. Tested by this rule the judgment could not be dormant, because only sixteen months had elapsed after the rendition of the judgment before the issuance of the execution.
I am aware that the general law of limitations, (Art. 4608,) provides, that “Judgments in any court of record within this republic, where execution hath not issued within twelve months ..after the rendition of the judgment, may be revived by scire facias or action of debt brought thereon within ten years next *31after the date of such judgment, and not after.” Though this does not directly declare a judgment to be dormant if execution be not issued in one year, yet it is implied, and the profession have generally treated it as a positive law. But the act of 1866, above referred to, contains no implications, but is mandatory, and repeals all acts and parts of acts in contravention thereof. The judgment is reversed and reformed.
¡Reversed and reformed.