37 Cal. 121 | Cal. | 1869
Lead Opinion
The plaintiff claims title through the judgment of Martin v. Sanders & Brenham, rendered November 22d, 1865, and the defendant through the judgment of Massett v. Sanders & Brenham, rendered November 19th, 1855. There are other judgments involved in the case, but the two mentioned present all the material questions. It was stipulated that the “ sole issue to be tried herein is, which party succeeded to the title of Sanders & Brenham.”- An attachment was issued in the Martin case, which was levied on the property in question November 6th, 1855. An attachment was also issued in the Massett case at the commencement of the action,' but it does not appear that it was levied. An execution was issued upon the Martin judgment November 22d, 1855, which was levied upon the property on the next day; and on the 24th of November, 1855, an execution upon the Massett judgment was issued and levied upon the property. ‘ In December, 1855, a temporary injunction was issued in the action of Peyton v. Scannell, Sheriff, et al., restraining all proceedings under the judgments and executions above mentioned, and the Sheriff returned both the executions. The injunction was dissolved June 5th, 1858. A second execution was issued on the Massett judgment November 19th, 1857—pending the temporary injunction—and under it the property was levied upon, and sold to Ward December 10th, 1857, and was conveyed to him by the Sheriff in 1862.
A second execution was issued on the Martin judgment December 30th, 1857, which was returned without making sale, and a copy was filed in the Recorder’s office February 6th, 1858; and on the 30th of April, 1858, a third execution was' issued, under which the property was sold, June 5th, 1858, to Sharp. In 1856 Griffith recovered a judgment against Sanders & Brenham, and under it he redeemed the property from the sale under the Massett judgment, and in June, 1859, the Sheriff conveyed the premises to him as a
The Sheriff’s deed to the defendant of the date of June 29th, 1862, was not admissible in evidence. It was executed subsequently to the stipulation, which limited the issue to the title then held by the respective parties. The rule upon •which the defendant relies—that a Sheriff’s deed takes effect by relation, for certain purposes, at the date of the sale—does not obviate the objection, for the legal title alone is in issue in the action, and that did not pass until after the stipulation was made and the answer filed. Whatever title was acquired under the deed it could not be relied on by the defendant without having been set up by supplemental answer. (McMinn v. O’Connor, 27 Cal. 247; Moss v. Shear, 30 Cal. 472.)
The plaintiff’s objection to the evidence and findings in • respect to the redemption by Griffith from the sale to defendant is not well taken.
The plaintiff introduced evidence showing that such redemption was made, and he cannot complain that the defendant did not supplement the evidence by production of the papers upon which Griffith claimed the right. The Sheriff’s return, produced by the plaintiff, had this indorsement : “ The within described property redeemed by Mellen Griffith, this 24tli day of February, 1858. James C. Ward, by George R. Ward, attorney.” Whatever may he the rule where another creditor or the judgment debtor claims the right to redeem either from the purchaser or a redemptioner who resists the claim, it is clear that as between the immediate parties to the redemption, the production of the papers mentioned in the statute may be waived. A creditor not pursuing that remedy, but proceeding under his own execution, has no more cause to complain of such waiver than of the fact that the purchaser did not insist upon all the percentage to which he was entitled. The redemption is virtually a transfer of the certificate of sale, and although the redemptioner might not be entitled to demand the amount of his
We come now to a question of greater importance and of some difficulty—the question upon which the former decision mainly turned—whether the levy of an execution upon real estate, during the pendency of a judgment lien, constitutes a new and distinct lien. We regret that counsel have not given this question more thought and labor. The chief cause of difficulty in construing the statute arises from the circumstance that our statute is mainly copied from that of Yew York, in which the lien of the judgment continues for ten years from the docketing, and an execution may be issued at any time within five years, and after that time, on leave of the Court; while, under our statute, the lien of the
■ In the investigation of the question, the attachment, judgment, and executions will come up for review. The purpose of an attachment is to hold the property of the defendant as security for such judgment as may be rendered, (Practice Act, Sec. 120,) and when the judgment is rendered and becomes a lien upon the property attached, the lien of the attachment becomes merged in that of the judgment, and the only effect thereafter of the attachment lien upon the property is to preserve the priority thereby acquired, and this priority is maintained and enforced under the judgment. If it does not cease at that time, except as giving priority to the judgment lien, when does it cease? Does it continue after the judgment lien has expired by limitation? The attachment lien, as to its amount, depends upon the ex parte statement of the plaintiff, while that of the judgment is certain. The lien of the latter is of a higher order, if it is possible that there can be different ranks among the liens. We will hazard the assertion that the law does not contemplate the existence, at the same time, of two distinct liens, arising by operation of law in one action, for the security of one demand. If the position is correct that the attachment lien ceases, except as maintaining priority for the judgment lien upon the property attached, it does not revive on the expiration of the judgment lien. Our remarks are confined to real property, as the judgment does not constitute a lien upon personal property.
The judgment being a lien for two years from the time it is docketed upon the real estate of the defendant within the county in which the judgment is docketed, and a lien for the same time upon the real estate in any county in which a transcript of the docket is filed with the Recorder, such liens are enforced by executions. That is the only purpose of the execution in respect to real estate while the judgment lien subsists. Section two hundred and ten, prescribing the form of the execution, provides that it shall require the Sheriff to
The doctrine of Wood v. Colvin, 5 Hill, 228, that the judgment being a lien upon the lands, a levy is unnecessary, that the judgment binds the lands, and the execution comes as a power to sell, is often cited with approbation, and is, we think, the correct rule. The same principle is stated in Catlin v. Jackson, 8 Johns. 548. The Chancellor, in delivering the unanimous opinion of the Court of Errors, says: “In several essentials the effect of the execution must be different from a fi. fa. levied on personal estate only. The delivery of the fi. fa. gives no new rights to the plaintiff and vests no new interests. The general lien is created by the judgment, and the execution is merely to give that lien effect—not by vesting a possessory right to the land affected by it in the plaintiff, but by designating it for a conversion into money by the operation of the fi. fa. and the act of the Sheriff by virtue of it.” Although a levy of the execution is unnecessary to give effect to the judgment lien, yet that course is
The statute has not declared that the levy shall constitute a lien. At common law the levy did not constitute a lien upon lands, nor could the title to lands be affected by an execution in satisfaction of a money judgment. Tinder a levari facias, not even the possession of lands, but only the present profits, were transferred; and when the writ of elegit was given by statute, the possession of a moiety of the defendant’s lands was given to the plaintiff. (3 Blackst. Com. 417.) Mr. Chancellor Kent, in discussing the subject of the lien of judgments, executions, etc., says: “The lien, after all, amounts only to a security against subsequent purchasers and incumbrancers; for, as the Master of the Bolls said in Brace v. Duchess of Marlborough, it was neither jus in re nor jits in rem—the judgment creditor gets no estate in the lands; and though he should release all his right to the land, he might afterwards extend it by execution.” (4 Kent Com. 437.) A lien being a mere priority over subsequent purchasers and incumbrancers, it is a contradiction of terms to say that by the levy a new priority is acquired, which, instead of ante-dating, must, of necessity, post-date the priority already held.
The doctrine in New York and in this State is, that in order to preserve the priority acquired by the judgment lien, the sale must be made during the statutory period of the lien. (Isaac v. Swift, 10 Cal. 81; Roe v. Swart, 5 Cow. 294; Little v. Harvey, 9 Wend. 158; Tufts v. Tufts, 18 Wend. 621; Graff v. Kipp, 1 Edw. 619;. Pettit v. Shepherd, 5 Paige, 493.) This was so held on the ground that the opposite rule would extend the lien beyond the time mentioned in the statute. It would seem unaccountable that the Legislature should have been so particular in fixing the period of the existence of the judgment lien, and that the Courts should have been so careful in maintaining it, if, at the same time, the plaintiff might have acquired' a lien through the execution that would last for the lifetime of the judgment.
There are several provisions of the statute that throw light upon and in some degree test this question. Suppose a judgment is docketed and execution issued and levied upon the defendant’s lands, but no sale made within the two years of judgment lien, and that one year subsequent to the docketing of the first, another creditor obtains and dockets his judgment and issues and levies his execution on the same lands. The senior judgment, after the two years of its lien, loses its priority, and we have seen that a sale upon execution, after that time, does not extend the lien of the judgment, and during the third year after the docketing of the judgment the levy, if it constituted a lien, became a dormant lien, for during that year the junior judgment has priority, and a sale under it would pass the title; and if, after the expiration of the third year, without sale under the junior judgment, the priority shifts back to the first levy, it must be worked out by a process of revivor, for which we find no warrant in the statute. Or suppose the judgment defendant sells and conveys the lands during the existence of the judgment lien,
The Practice Act (section two hundred and thirty) provides for a redemption, and those entitled to redeem are the judgment debtor, his successors in interest, and a creditor having a lien by judgment or mortgage subsequent to that on which the property was sold. It is unaccountable that the Legislature should have omitted those having liens by executions, if it was intended that the levy should create a lien. It is provided by section two hundred and thirty-one that the redemptioner shall pay not only the purchase money, with the percentage, etc., but also the amount of any lien prior to that of the redemptioner. Had the second creditor, in the case first supposed, sold the lands during the second year of his lien, the first creditor could not have redeemed, because he did not- hold & subsequent judgment lien; but if the first creditor had purchased at that sale, and a third judgment creditor had come to redeem, he would not have been required to pay the amount of the first judgment, because it did not then constitute a lien; but he would have to satisfy the execution issued upon it, if the levy did, in truth, amount to a lien.
Under our statutes the period of the docket lien is less than that during which an execution may issue, and the same is the case in New York, as well as in many other States. According to the provisions of section two hundred and fourteen of the Practice Act in force up to 1861, an execution might issue, as of course, within five years from the entry of the judgment; and after that time, upon leave of the Court, upon showing that the judgment, or some portion of it, remained unsatisfied and due. The shorter period of the judgment lien was adopted for the purpose of leaving
Where there are several executions in the hands of the officer at the same time, under which the lands are sold, it is held that the money must be applied first to the satisfaction of the oldest existing judgment lien. (Roe v. Swart, 5 Cow. 294; Barker v. Gates, 1 How. Pr. 77; Jackson v. Robert, 11 Wend. 422.) It was held in Roe v. Swart that, although the execution upon the first judgment was issued within ten years from the docketing, yet, as the sale was not made within the ten years, the money must be applied to the satisfaction of the second judgment.' And where an execution was sent to another county', and was received by the Sheriff before the
The policy of the law, in requiring conveyances, instruments, and proceedings affecting real estate to be made a matter of record, so as to impart notice to those dealing with the property, is manifest from numerous provisions of the statute. The provisions for the recording or filing in the proper office of deeds, mortgages, contracts, notices of Us pendens, judgments and attachments, are familiar instances. It may be contended, and, perhaps, maintained, that by the provisions of section two hundred and seventeen, that property “ may be attached on execution, in like manner as upon writs of attachment,” it was intended that a copy of the writ, with a description of the property levied upon, as in the case of an attachment when real property is seized, should be filed in the proper Recorder’s office; but, however this may have been, it is too late now to insist on that construction. The practice has been almost uniform since the adoption of that provision in 1851, to omit the filing of a copy of the execution in the Recorder’s office. Cases almost innumerable have been litigated, in which the levies of executions were in question, and it has not been held anywhere, so far as we are apprised, that the filing of a copy of the execution and levy in the Recorder’s office was essential to the maintenance of the levy. Vast amounts of land are held under execution sales, in which copies of the writ and levy were not filed in the Recorder’s office; and a change in the construction of the clause of the section mentioned, even if we thought the practical construction given to it was incorrect, would be followed by most disastrous consequences. The change in the practice, if any is necessary, should be made by the Legislature, so that its operation might be only prospective. It requires no argument to show the bad policy, if not injustice, of charging those dealing
Whore there are no judgment or attachment liens, the levy operates upon real property as it does upon personal property—that is, the execution first served has priority. Whether such priority extends to subsequent conveyances, mortgages, or judgments, it is unnecessary in this case to determine. Nor does it become necessary to inquire as to the priority of executions levied before, but the sales made after the expiration of the judgment liens, for the property in controversy was, in each case, levied on and sold under an execution issued after the expiration of the judgment lien, and by the successor of the Sheriff to whom the first executions were issued. The common law rule that the officer who has commenced the execution of process may complete it, though the return day has passed, will not aid the plaintiff, for the rule has not been extended so as to give such power to the officer's successor, except when the power is conferred by statute, and we have no statute that would reach the case; and besides this, the officer who made the sale did not pretend to act under the executions which were first levied upon the property.
If the plaintiff is restrained from issuing or proceeding with his execution until the judgment lien is about expiring, and, therefore, insists that he ought to have the benefit of a lien by means of the levying of the execution, the answer is, that he may demand adequate security when the restraining order is made. If he could acquire such a lien, there is but little doubt that, in order to avoid contingencies, he would in most cases make the execution lien cover all that the judgment lien did, and thus the latter lien would, in effect, be extended three years beyond its original limit. If a lien of a greater duration is desired, the remedy is with the Legislature, and the provisions of the statute on this subject might then be brought into more complete harmony.
Our conclusion upon this branch of the case is that, pending the judgment lien, the levy of the execution neither
The sale and conveyance under the Massett judgment, being prior to that made under the Martin judgment, the title to the property vested in the defendants, unless the Sheriff’s sale was not merely voidable, but void, because of its having been made while the preliminary injunction in Peyton v. Scannell was in force. The deed was executed after the injunction was dissolved. Counsel have not cited any authority to this precise point,, and we shall not discuss the question at any considerable length. The cases all agree with those cited by the plaintiff, that a sale under such circumstances was a violation of the injunction, and that, pending the injunction, Massett might have been punished therefor as for a contempt, and that during the same time both the execution and sale might, upon proper proceedings, have been set aside. In many cases of sale or transfer of property in disregard of an injunction issued at the instance of a judgment creditor, the defendant has been fined to the extent of the judgment and costs. The Court, we apprehend, would not be so exact in measuring the penalty, which is usually imposed for the benefit of the injured party, if he-still retained his original security for the payment of his judgment, notwithstanding the sale by the defendant, as surely would be the case if the sale was void. Nor would there be any necessity or even propriety in ordering a restoration of the property to its previous condition, if its attempted disposal in violation of the injunction was absolutely void.
We are of the opinion that the sale was not void.
Judgment affirmed.
Dissenting Opinion
Both parties claim through Sanders & Brenham, who owned the locus in quo in 1855, and until the title passed by-sale under judgments against them—either by a sale under Martin’s judgment, under which plaintiff claims, or under Massett’s judgment, through which defendant derives title.
The expressed findings in this case, in view of the evidence, are so meagre as to be worthless for the purposes of determining the rights of the parties. The findings not expressed, under the statute as it now stands, must be presumed to be such as to support the judgment. The Court must, therefore, have found that the defendants had a prior lien in some form. In the motion for new trial, the plaintiff, in a very loose form, it is true, specifies substantially as a ground for a new trial, that the Court should have found upon the evidence the prior unexpired lien to have been secured by Martin by an actual levy, cither under his attachment, or his execution of November 22d, 1855; whereas the prior unexpired lien was found to have been secured by Massett, and that in this respect the findings are unsupported by the evidence. Although the ground is not so well specified as it might have been, I think plaintiff" entitled to have it considered. Martin’s judgment was docketed November 22d, 1855, and thereby became a lien for two years from that day. Massett’s judgment was docketed on the 19th of November, 1855, and continued a lien for two years. Massett’s judgment, by virtue of its being first docketed, became the first judgment lien under section two hundred four of the Practice Act. But no sale took place under either judgment within two years after being docketed, and the respective liens of the judgments thus acquired were lost. Executions were issued upon both judgments, and levied within two years, but this does not extend the liens of the judgments—that is to say, the liens acquired by the mere docketing of the judgment, under section two hundred
In Wood v. Colvin, 5 Hill, 230, Mr. Justice Bronson said: “After lands were subjected to sale on execution, and before the judgment was made a lien, the sale of lands and of goods on execution stood substantially on the same footing, and a levy or seizure was necessary in the one ease as well as in the other. But when the judgment was afterward made a lien on the land, there was no longer any reason for requiring a levy before the Sheriff proceeded to advertise and sell.” That is to say, not necessary for the purpose of giving effect to and enforcing the lien already in existence, for this was all that was under consideration. But it does not follow that he may not acquire a new and different lien, notwithstanding there may be no necessity for it, so far as power to sell within the time of the docket lien is concerned. Under this authority, a levy did create a lien, when necessary to be made for any purpose, and such is an incident of every seizure in any mode recognized by law. The ordinary effect of a levy under any process is well stated by the Court in Stauffer v. Commissioners, 1 Watts, 300, where a transcript for taxes was put on the footing of a judgment, as to the creation of a lien, and it was insisted that no lien could be created by levy on a house and- lot other than that created by the statute. The Court say: “And why should not the seizure create the same lien which is incident to every process of execution at the common law? Because, say the subsequent creditors, there can be no other lien than the one created by the Act of Assembly. That lien was created to enable the Commissioners to indulge the delinquent for the period limited, without jeoparding the debt, and to give them time to take such measures as might be reasonable, in order to turn the property to the best account, but not to provide the securing of it after seizure. For that purpose a lien is a necessary and inseparable incident of seizure in execution, by the principles of the common law. Property levied is in the custody of the law, the end of which
It is clear to my mind that, without any statutory provision affecting the question, except the adoption of the common law, as modified and in force at the time of the settlement of the United States, an actual levy would create a lien, and in the above extract it is expressly said that, “as regards the expired lien of a judgment within the county, it is not to be doubted that an execution levied would, under the same limitation, create a new lien, though it may not, under the last Act of Assembly, continue or extend the old one.” Unless there is something in our statute changing the effect of an actual levy on lands, or inconsistent with this idea, that an actual levy made while there is already an existing docket lien, creates a new, independent, specific lien of its own, not independent of the judgment, it is true, hut independent of the general lien created by the judgment proprio vigore, under the statute, at the moment it is docketed—then a specific lien is still a necessary incident to a levy. If there is any
The ab inconveniente argument to sustain the other view does not appear to me to be entitled to much weight against well settled principles of' law. Nor do I see that there is greater difficulty in ascertaining the coudition of titles than in the case of judgment liens. Under the statute as it now stands, the mode of levying an execution on real estate is prescribed. It “may be attached in execution in like manner as upon writs of attachment,” and the mode, in case of attachments, is particularly pointed out, and the levy made a record in the Recorder’s office. In 1855 the mode of levying an attachment was the same, but nothing was said as to the mode of levying an execution. As an attachment is but a levy before judgment, on a writ of attachment, instead of after judgment on the execution, but for the same ultimate purpose— really the commencement of the execution of final process, the writ of attachment being in effect a part of the process for executing the judgment when obtained—a levy in the mode prescribed for levying attachments would undoubtedly be regarded as sufficient. I am of the opinion that a creditor by an actual levy of an execution on real estate, acquires thereby a specific lien, distinct and wholly independent of-any general lien acquired by operation of law by the mere docketing of the judgment, which new lien is in no way affected by the expiration of the docket lien. And independent of fraud, or some provision of law to the contrary, which has not been brought to my notice, I do not see why it does not continue until the judgment is satisfied, or becomes itself barred or dormant, by the lapse of five years time. After the expiration of five years from the entry oí judgment, the lien loses its vitality of course, for the jndg
Generally, so far as my observation extends, this has not been a practical question in the older States under former statutes, for the reason that judgment liens, and the vitality of the judgments themselves, upon which they depended, extended over the same period of time. The lien and the judgment ran together,, and expired, or became dormant together. But under our statute, where different periods are established for the enforcement of the judgment, and the continuance of the general judgment lien, the question becomes both practical and-important.
It is insisted that if Martin acquired a lien by virtue of the levy on November 23d, 1855, the sale was not made on that execution, or by the same Sheriff, Scannell, but on another execution issued to Doaue, successor to Scannell, who levied his own execution, and sold only such interest as he himself seized; that the two Sheriffs were not in privity, and that Doane had no power to sell an interest seized by Scannell on another writ. Neither party has collected the authorities on this point. It is undoubtedly true, that, when a levy has been made during the life of the execution, and the execution returned with the levy indorsed, the officer who made the levy may afterward go on and sell after the return day of the writ, and even after his term has expired. (McFarland v. Gwin, 3 How., U. S., 717.) So when an attachment had been levied on real estate and returned, and the judgment was not entered, or execution issued till after the expiration of the term of the officer, the execution was finally issued to, and the sale under it made after the expiration of his term by the officer who levied the attachment, it was held under statutory provisions substantially similar to our own, that the writ was properly issued to the old Sheriff, and the sale well made. (Am. Exch. Bank v. Morris Canal Company, 6 Hill, 366.) This is on the principle that the Sheriff commenced the execution of process for enforcing the judgment, when he obtained a lien by levying the
In the case of personalty there might be some difficulty in consequence of want of possession, but I do not perceive why a valid sale could not be thus effected of realty, or even of personalty, provided the old Sheriff should turn over to his successor, having a new writ, the possession of the property already seized. It may be that the Sheriff, by the terms upon which he makes the sale, and the terms of his certificate of sale, and his deed, might in fact limit, his sale to such interest as he himself seized. But in this case the record says he sold the lot, not any particular interest seized by him, and conveyed the lot so sold under the respective executions named. While the regular mode, under the general rule of the common law, would have been for the former Sheriff to have completed the execution of the process commenced, I think, upon the fact as now presented, the sale by Doane was well made, and perfected the lien created by the former levy into a title. If I am correct in this, the lien under the first execution issued on the Martin judgment, is prior to the defendant’s lien under the Massett judgment, and the Court was in error in finding the latter to be prior.
I do not think, upon a proper construction of the return, that the levy should be regarded as released. The officer does not manifest any intention in his return to release his levy. A perpetual injunction might, perhaps, be regarded
The deed of January 29th, 1862, was improperly admitted in evidence, both under the stipulation and the settled rule in this State. The legal title conveyed by it was not in defendant when the action was brought. If it took effect so as to pass the title by relation at the time of the sale, the acts by which the title was in fact acquired accrued after the commencement of the suit, and it was necessary to plead it by supplemental answer. (McMinn v. O’Connor, 27 Cal. 247; Moss v. Shear, 30 Cal. 472.)
As to the Martin attachment, the Court does not state directly whether a levy was found or not, and under the view we have taken it is unnecessary to determine whether there was a levy or not. But if a levy was made, I do not perceive upon what principle the specific lien thus acquired merged in the judgment lien, as claimed. The statute provides that plaintiff, in a proper case, “may have the property of defendant attached as security for the satisfaction of any judgment that may be recovered”—not till he can get a judgment lien. The attachment is really a levy in advance of the judgment, as we have seen, and the lien acquired is specific. It is acquired by actual seizure, not by mere operation of law. It might be enforced by sale; under execution after entry of and before docketing the judgment. It is superior, rather than inferior, to the general judgment lien. I apprehend that a lien acquired by an actual levy, under an execution made before the judgment is docketed, would neither be lost, merged, nor modified by the subsequent docketing of the judgment. The principles before announced would apply. And I see no reason why the same principle should not apply with respect to a lien acquired by an actual levy under an attachment.
The sale under the Massett judgment by Sheriff Doane
It is quite evident that the case was not tried or decided in accordance with the principles .expressed in this opinion. I am of opinion, therefore, that our former j udgment was correct, and that the judgment should be reversed and a new trial granted.