61 Cal. 282 | Cal. | 1882
Lead Opinion
Defendant Foster, as Sheriff of Tehama county, by an execution which had been issued on a money judgment in favor of his co-defendant Campbell against Jackson Eby, one of the plaintiffs in this case, levied upon and advertised for sale the southwest quarter, and the west half of the southeast quarter of Section 8, Township 26 north, range 5 west, Mount Diablo Meridian, as the property of the judgment debtor.
Before the day appointed for the sale the plaintiffs in this case brought their action to enjoin the sale, upon the ground that the property constituted their homestead, and was exempted from execution, levy, and sale.
The record shows that the plaintiff, Jackson Eby, had acquired title to the property on November 3,1880, from one Sambo, in exchange for certain parcels of land in the town of Bed Bluff, which the plaintiffs, before the exchange of property, had occupied as their homestead; and their intention in making the exchange was to secure a homestead in the country instead of in town. The exchange and the declaration of homestead constituted a single transaction. Simultaneously with drafting the deeds of exchange a declaration of homestead, legal in form, upon the property in dispute was drawn, and the declaration with the two deeds of exchange were, at the same time, in regular succession executed and acknowledged and filed for record—the deed to Bambo for the town lots being recorded first, at four minutes past three o’clock P. M.; the deed to Eby, for the land in the country, at six minutes past three o’clock P. M.; and the declaration of homestead, upon the land in the country, at eight minutes past three o’clock P. M., of November 3,1880. But the judgment against Eby, on which execution had run to the Sheriff, had been given and entered on November 9,1878; and on the day of the recording of the deeds of exchange and the declaration of homestead by Eby and wife, this judgment existed unsatisfied of record; and the question arises whether the judgment was docketed, so as to create a lien upon the
Between the delivery of the deed to Eby and the recording of the declaration of homestead there was an interval of several minutes. That time was sufficient for the existing lien of a judgment to attach to the property. (Marriner v. Smith, 27 Cal. 650; Hibberd v. Smith, 50 id. 511.) But no judgment lien is created upon real property belonging to a judgment debtor until the judgment be docketed. (§ 671, C. C. P.) Docketing a judgment consists of an entry in the docket in the Clerk’s office of a brief abstract of the judgment. The docket in which this entry must be made is “ a book with each page divided into eight columns and headed as follows: Judgment debtors; judgment creditors; judgment — time of entry; where entered in judgment book; appeals — when taken; judgment of appellate Court; satisfaction of judgment; when entered,” etc. (C. C. P., 672); and the law has made it the duty of the Clerk to enter in this docket the title of each cause, with the date of its commencement, and a memorandum of every subsequent proceeding therein, with the date thereof. (Pol. C., Suhd. 3, § 4204.)
The entry thus required to constitute the docketing “ must he made immediately after attaching together and filing the papers which constitute the judgment roll in the case.” (§ 671, C. C. P.) These things must be done to create a judgment lien upon real property; if they are not done as required by law there is no lien.
Now, at the trial, it was admitted that no judgment roll had been made up in the case -under consideration; and it was proved that the entry which the Clerk made in his docket showed only the names of the judgment creditor and debtor, the amount of the judgment and date on which it was given, and entry of judgment and the date of issuance of execution. That of the judgment and entry of judgment is given as November 9, 1878, and the date of the issuance of execution as November 6, 1880. But when the entry of the abstract of the judgment was made on the docket is not given, unless it must be presumed that it was made on November 9,1878, the date of the rendition and entry of the judgment, or on November 6, 1880, the date of the issuance of the execution.
A judgment lien must have a commencement. If it exists, its commencement is the day when the judgment was docketed, for it is by docketing the judgment that the lien is created; and it runs for two years from and after that time (Ackley v. Chamberlain, 16 Cal. 181; Barroilhet v. Hathaway, 31 id. 395; Rodgers v. Rruffel, supra; C. C. P., § 671); and the time must appear by the record; for, as the lien is purely statutory, neither its existence nor commencement can be proved by parol. (Racouillat v. Requena, 36 Cal. 651; Norris v. Jackson, 9 Wall. 125.)
Whence it follows that, at the time of filing the homestead declaration upon the property in dispute, there existed no enforceable judgment lien upon the property; and, the property being homestead, it was not subject to execution for the sat* isfaction of the judgment.
The Court, by its general verdict, found, and the evidence sustains the finding, that the plaintiffs resided on the land in dispute at the time of the exchange of properties and of the making and filing of the declaration of homestead. There is no error in the record prejudicial to the appellant.
Judgment and order affirmed.
Concurrence Opinion
We concur in the judgment, upon the ground that the delivery of the deed from Eby to Eambo, and of the deed from Eambo to Eby, and the filing the same for record, together with the declaration of homestead, were simultaneous acts, and constituted one transaction; that the moment the title to the premises in question vested in Eby, the homestead right attached; therefore, the premises were exempt from the levy
