ON MOTION FOR REHEARING.
Douglas & Lanier and L. W. Campbell, on motion for rehearing. rehearing.— The point made in the first ground for rehearing was not raised in the court below nor in the briefs and assignments of error in this court. But if the law is as we understand it to have been "construed by the decisions of this court since the trial below, this being a question of law, may now be properly applied to this case on rehearing. We contend that though the
*306allegations, of defendants’ answer may be true, still they fail to show the State had a judgment lien on the land, because Haskell was attached to Shackelford for judicial purposes only. The caption and body of the act repel any other construction. Gen. Laws 1876, p. 133. The lien to which defendants are given the right of subrogation is of purely statutory origin, and its existence depends upon the judgment being properly recorded in the county pointed out by the statute. The judgment was rendered and the registration took place prior to the Act of March 30, 1881, and the lien of course can find no aid from the terms of that statute. The Act of November 9, 1866 (Pasch. Dig., arts. 7005-7008), is the law to which defendants must look to acquire a judgment lien on the land in question. That statute in express terms gives the right and points out the method whereby judgment liens may be created on lands in Texas, under which, when construed in connection with the decision of this court, notably O’Shea v. Twohig, 9 Texas, 336; Clark v. Goss, 12 Texas, 395; Wilson v. Catchings, 41 Texas, 587, and others, it is certain that Haskell, by simply being attached to Shackelford for judicial purposes, was not thereby made a part of said county and was not attached for purposes of registration. The Act of November 9, 1866, requires the judgment to be recorded in the county where the land lies, and the record is to be made in the book used for the registration of mortgages, so that the proper county for recording deeds and mortgages was under said act the proper and only county in which a judgment could be recorded so as to become a lien on' lands. Baker v. Beck, 74 Texas, 562, and cases cited. And we conclude there was no judgment lien on the land in question, and such being the case the land was not charged with the payment of said judgment as claimed when the deed was made from Mrs. Ferguson to her children; and as the State held no lien, none could through the operation of said transaction come down to defendants, and the land is in no way charged therewith; and it follows that plain tiffs may recover the land without restoring to defendants the money paid by them.
HENRY, Associate Justice.—Appellees in support of their motion for rehearing contend that the recording of the State’s judgment in Shackelford County on the 17th day of February, 1879, did not create a lien on the land in controvesy situated in Haskell County, which was then attached to Shackelford County for “judicial purposes only.”
The Act of November 9, 1866, was in force when the judgment was rendered, and directed that “a transcript thereof, duly certified by the clerk under the seal of the court, be recorded in the book used for the registration of mortgages” in the county where the land was situated.
The record in this instance was made before the passage of the Act of March 30,1881, and can not derive any aid from that act, which provides that “all deeds, conveyances, mortgages, deeds of trust, or any other writ*307ten contracts relating to real estate, which are authorized to be recorded, * * * relating to real estate situated in an unorganized county, shall he recorded in the county to which such unorganized county is attached for judicial purposes.” The act contains a proviso that nothing in it “shall be constructed to affect the registration of any such instruments heretofore made in either a land district to which any unorganized county may have been attached, or any county to which any unorganized county may have been attached for judicial purposes.”
While this act settled for the future the disputed question as to where such records should be made, it did not in any way affect the legality of records previously made.
Appellees in support of their contention against the validity of the record of the judgment made in the county of Shackelford, to which Haskell was then attached as an unorganized county for “judicial purposes only,” refer us to the case of Baker v. Beck, 74 Texas, 562. The question in that case was whether a deed for land situated in an unorganized county and attached for “judicial purposes only” to another county was before the act of 1881 required to be recorded in the county from which the territory ■of the unorganized county was taken or in the county to which it was attached for “judicial purposes only,” and it was decided that the county from which the territory was taken was the proper place to record the deed.
The question before us is as to the proper county for a judgment to be recorded in to make it operate as a lien on land, and not as to the proper place for recording a deed conveying land.
The questions are materially different. We think that the recording •of a judgment for the purpose of making it a lien is strictly a judicial purpose. It is as much one step towards collecting a judgment as is the levy of an execution issued on the judgment. The sheriff’s deed when made relates back to the date of the record, which thereby becomes an essential part of the title conveyed by him. There can be no doubt about the propriety of issuing the execution upon the judgment to the sheriff of the county to which the unorganized county is attached for judicial purposes and in which the judgment was rendered, nor about that officer’s power to sell the property at the court house of his own county.
It is useful and important for bidders to have the means of ascertaining whether the judgment under which the sale is being made is a lien on the land at the time and place of making the sale.
It is true that knowledge of all records relating to the land would be useful under the same circumstances; but the fact that the law before 1881 did not require conveyances to be recorded in the county where the judicial proceedings were conducted can not be held to modify or limit the effect of laws with regard to such proceedings, which include all of the steps taken in the actions for the recovery of debt from the filing of the *308original petition to the sale of the property and the execution of the deed to the purchaser and payment of the money to the creditor.
The judgment in favor of the State was recorded at the proper place and in due time, and proper diligence having been exercised in the issuance of executions, according to the averments of the answer, a lien upon, the land did exist in favor of the State.
We do not think that this-is a proper case to apply the rule contended for as applicable between principal and surety so as to devolve the whole of the judgment in favor of the State upon the one-sixth of the land purchased by defendants from W. 1\ Ferguson, or from his wife, rather.
The answer of defendants shows that only one-half of the land was conveyed by appellees, and that defendants only acquired from them one-half of the land in controversy. Plaintiffs in the court below claimed one-half, and not the whole of it, and by the expression in our opinion that they can not “recover back the land without restoring the money,” we did not intend to be understood as deciding that they must refund the whole amount of the purchase money paid by defendants.
Before they can be permitted to recover one-half of the land they must refund one-half of the purchase money paid by defendants, and interest thereon from the time that the money was paid by defendants.
If it shall be made to appear that defendants have had the actual use of the land, they should be charged with that, or with the excess of the value of the use over permanent and valuable improvements if they have placed such on the land. This question is raised by appellees by their motion for a rehearing, but as it is not otherwise properly presented it does not become necessary or proper for us to say more on that branch of the cause.
Appellants in their reply to the motion for rehearing ask us to pass upon the following proposition, which they contend is raised by one of their assignments of error:
“The voluntary conveyance by Mrs. Ferguson to her children was void as to her creditors, and being' void the title remained with her, and her subsequent sale, effected through her agent, William F. Ferguson, to Folts & Donnan for the purpose of paying her debts, was a valid sale and can not be questioned by the donees claiming under the voluntary conveyance.”
We can not give our assent to this doctrine. The question was considered by this court and decided otherwise in the case of Miller v. Koertge, 70 Texas, 162.
The motion is overruled.
Motion overruled.
Delivered June 10, 1890.