25 Cal. 337 | Cal. | 1864
Lead Opinion
This action was brought to enjoin a Sheriff’s sale of a certain house and lot upon which the defendant Lewis claimed a judgment lien by virtue of the two hundred and fourth section of the Practice Act. The facts disclosed by the record are substantially as follows: Lewis commenced an action in the District Court of Yuba County against Covillaud and Nye in 1859 to recover judgment against them for an amount of money claimed to be due to him, and also to enforce a vendor’s lien, upon certain real estate in the City of Marysville belonging to Covillaud, and to obtain an order of sale thereof to satisfy the judgment that he might recover. On the 9th of May, I860, he recovered judgment for four thousand three hundred and twenty-three dollars and five cents, and also obtained a decree foreclosing his vendor’s lien and directing the sale of the real estate for the satisfaction of the judgment. This judgment was docketed on the 14th of May, 1860. Within the statute time Covillaud and Nye filed and gave notice of motion, and filed their statement, for a new trial. Afterwards, on the 17th of November, 1860, their motion for a new trial was overruled by the Court. Covillaud and Nye, within the statute time, gave notice of appeal to the Supreme Couid; from the judgment against them, and from the order overruling their motion for a new trial. They also, in proper time, executed and filed their undertaking on appeal, having first applied to the Judge of the Court for and obtained an order, under section three hundred and fifty-two of the Practice Act, fixing the amount of the undertaking at two thousand dollars, to stay waste and secure the value of the use and occupation of the premises ordered to be sold, and to pay any deficiency remaining unpaid upon said judgment, etc. The appeal thus perfected was passed upon by the Supreme Court on the 20th of December, 1862. The Court affirmed the money judgment, but reversed the order of sale or so much of the judgment as established a vendor’s lien and directed a sale of the real estate. (Lewis v. Covillaud, 21 Cal. 178.)
At the time of the docketing of the Lewis judgment, on the 14th of May, 1860, neither Covillaud nor Nye, the judgment debtors, had any interest in this house and lot. One Levy was the owner of the premises. Nye purchased them of Levy on the 11th of June, 1861, more than a year after the docketing of Lewis’ judgment. At the time he purchased, Nye was a married man and the head of a family. He had no residence of his own ; he took possession of the premises, with his family, some ten or twelve days after he purchased, and as soon as he could get possession. Nye continued to reside upon the premises until the 23d of August, 1861, when he and his wife filed their declaration claiming the premises as a homestead. From that time Nye and family continued to reside upon the premises until the 19th of July, 1862, when, for a consideration of two thousand dollars, they conveyed the same to plaintiff, who took the possession thereof.
At the time this action was commenced a temporary injunction was granted, which was dissolved on the final trial, the Court below holding that the judgment in Lewis v. Covillaud and Nye was a valid and subsisting lien under the two hundred and fourth section of the Practice Act, upon the house and lot of the plaintiff at the time of the issuing and levy of the execution thereon, and that the defendant Lewis had a right to sell the premises to satisfy his judgment. From that judgment the plaintiff appeals.
Before entering upon the discussion of the various questions involved in this case it is important that the nature and character of the judgment which was rendered in Lewis v. Covillaud and Nye should be definitely settled. That judgment was rendered and docketed prior to the amendments of the two hun
“ It is therefore ordered, adjudged and decreed that judgment be and the same is hereby rendered and entered up in' favor of the plaintiff, Joseph E. R. Lewis, and against the defendants, Charles Covillaud and M. C. Rye, for the sum of four thousand one hundred and sixty dollars and fifty cents, and that said sum draw interest from the date thereof until paid at the rate of two per cent per month, and for the further sum of one hundred and sixty-two dollars and twenty-five cents, costs of suit,” etc. The judgment then proceeds in the form of a decree in equity, under the old chancery practice, establishing a vendor’s lien and providing for its enforcement in the usual manner.
Under our system of practice there is but one form of action “ for the enforcement or protection of private rights, and the redress or prevention of private wrongs,” and in a proper case legal and equitable relief may be had in the same action. The result in such cases is a judgment with a twofold aspect, one looking to the legal and the other to the equitable relief. Hence it has been held that in foreclosure cases a formal judgment in personam may be rendered against the defendants for the amount found due, with a provision for its enforcement against the property upon which the lien is established.
The appellant contends that the judgment under consideration is in accordance with the latter form above described, and the respondents contend that it is in accordance with the former. Counsel for respondents seem to overlook one of the consequences of their theory, which would, if their theory is to prevail, prove fatal to their case.
The respondents seek to establish a lien under the judgment ’ in question. If the judgment has the form which they .claim for it, the docketing thereof created no lien, according to the rule in Chapin v. Broder. In that case the Court said: “ We have held in reference to this section (246 of the Practice Act) that in actions of foreclosure its effect was to authorize a personal judgment against the mortgagor, in addition to the relief usually granted in such cases. Where such a judgment is rendered, there is no doubt that when docketed it becomes a lien in accordance with the statute. It is obvious, however, that nothing but a judgment establishing a definite personal liability can have this effect. A mere contingent provision, referring to no particular amount, and in abeyance until the contingency is determined, is not within the meaning of the statute. It may become a valid and perfect judgment, but until the amount to be recovered is ascertained and fixed no effect can be given to it as a lien.
The first point made by counsel for appellant is as to the effect of ah appeal upon a judgment lien, and it is claimed that the two years during which the lien is allowed to continue commences from the -docketing of the judgment, notwithstanding' an appeal may have been taken, and notwithstanding an undertaking on appeal may have been given sufficient to stay all proceedings upon the judgment in the Court below, pending the appeal.
And, in the second place, it is claimed that if an appeal, with a sufficient stay-bond, operates to postpone or suspend and continue the lien, so that the two years do not commence, to run until , after the date of the remittitur from this Court, no stay-bond sufficient for that purpose was given in the case of Lewis v. Covillaud and Nye.
1. 'íhe first proposition has been argued with much learning and ability by counsel upon both sides, but under the view which we have taken of the question, it becomes unnecessary to follow the line of argument which has been adopted.
“The obvious intention was to charge the estate of the judgment debtor, and to give the creditor two years to make his money. The statute intended that this time should run from the date of the judgment or period, at which the plaintiff was in a situation to take out execution and pursue his remedy to final satisfaction. By the defendant’s own act the force of that judgment has been suspended, and the lien, which is merely an incident, must share a like fate. It would be absurd to say that a lien attached upon a judgment and expired by its own limitation while the judgment was still in fieri, and could not be prosecuted to full fruition.
“ The defendant would thus be able to abridge, if not destroy the lien, and in all cases where a period of more than two years intervened between the date of the judgment in the Court below and the final judgment in this Court, to substitute personal for that security which the law gives the successful party. It was never intended that a party, by prosecuting a frivolous appeal, should thus be allowed to take advantage of his own wrong.”
The case of Dewey v. Latson has never been overruled. On the contrary, the construction of the two hundred and fourth section of the Practice Act came before that Court again only two years later, in the case of Isaac v. Swift, 10 Cal. 71, and
In the former case, Dewey v. Latson was cited by counsel and brought directly to the attention of the Court. Had the Court become dissatisfied with the rule established in Dewey v. Latson, an opportunity thus early was afforded in Isaac v. Swift to overrule that case, yet in the opinion of the Court no word of dissatisfaction is found. In Chapin v. Broder, the case of Dewey v. Latson is expressly mentioned, commented upon and explained by Mr. Justice Cope, who delivered the ojfinion of the Court, without expressing any dissent from the rule there established. On the contrary, in his opinion delivered on the petition for a rehearing, he clearly shows that the doctrine iñ Chapin v. Broder does not conflict with that announced in Dewey v. Latson, but on the contrary is in harmony therewith. Thus, whether correct or not, the construction of the section of the Practice Act in question, as given in Deioey v. Latson, has remained undisturbed for more than eight years, during which time it has been the rule of decision in the Courts and of conduct with the people. Great interests may have been acquired under the law thus expounded which might be prejudiced by a contrary exposition at this late day. Where such is the case no change should be made by the Courts, but if a change be demanded a resort to the Legislature should be had. Ruinous consequences might follow a change resulting from judicial tergiversation by reason of its retroactive effect, but none such can result from legislative interposition. Without, therefore, discussing the merits of the question, we rest our decision solely upon the doctrine of stare decisis, holding the present to be a case to which that doctrine ought to be applied.
It follows that where an appeal has been taken and a bond sufficient to stay proceedings upon the judgment pending the appeal has been given, the lien created by the two hundred and fourth section of the Practice Act remains a valid and subsisting lien upon all the real property of the judgment debtor, not exempt from execution in the county where the
2. The next point made by counsel for appellant is to the effect (assuming the law to be as we have declared) that no appeal bond was given in Lewis v. Covillaud and Nye sufficient to stay proceedings on the personal judgment during the pendency of the appeal, and that as a consequence Lewis was not prevented by the appeal from proceeding at any time to enforce his money judgment by execution, and if so, that the lien expired at the end of two years from the time the judgment was docketed. If it be true, as contended, that the bond given on appeal was not sufficient to stay proceedings on the personal judgment, it follows, under the rule laid down in Chapin v. Broder, that the lien was not extended by the appeal beyond two years from the docketing of the judgment.
The three hundred and fifty-second section of the Practice Act, under which the undertaking was given, provides that, “ If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the Judge of the Court by which the judgment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgage premises and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.”
This section is double, and provides for two distinct under
We are aware that^an impression has prevailed to a considerable extent among the members of the profession to the effect that in foreclosure cases, regardless of the character of the lien, no undertaking on appeal is. required except for •costs, as provided in section three hundred and forty-eight, and for waste, use and occupation and deficiency, as provided ■in section three hundred and fifty-two; but from a careful examination of the several sections of the Practice Act touching undertakings on appeal it is manifest that this impression
But to this seeming theory of the three hundred and fifty-second section, the three hundred and fifty-fourth section is opposed. That section provides that “ the undertakings prescribed by sections three hundred and forty-eight, three hundred and forty-nine, three hundred and fifty, and three hundred and fifty-two, may be in one instrument or several, at the option of the appellant.” Thus the Legislature seems to have contemplated that a case might arise where the appellant would be required to give several or all of the undertakings provided for in cases of appeal, according to the character of the judgment and the extent of the appeal. This view is in harmony with that provision of the statute which enables a party to appeal from the whole or any specific part of the judgment, (Practice Act, sec. 337,) and with that which limits the stay of proceedings to the judgment or order appealed from, and allows the Court to proceed upon any other matter included in the action and not affected by the judgment or order appealed from. (Sec. 353.)
In the case of a judgment which directs the execution of a conveyance or other instrument, of course no bond, except for the money branch of the judgment, if such there be, is required, the appellant being required to execute and deposit with the clerk the conveyance or other instrument instead of the bond exacted in other cases.
In foreclosure cases, where there is no judgment in personam, but only a judgment in accordance with the old chancery practice, a bond for costs and a bond for waste and deficiency would be sufficient; but where the judgment is in the form authorized by our practice, as decided in Rollins v. Forbes, Rowland v. Leiby, and Chapin v. Broder, and it is desired to stay proceedings as to the whole judgment, there must be a bond for costs, a bond in double the amount of the personal judgment and a bond for waste and deficiency, all of which may be included in one instrument or several, at the option of the appellant. In the ¡present instance the appeal was from the whole judgment, but no bonds were given except for costs, waste and deficiency. The first was sufficient for the puipose of perfecting the appeal, and the second was sufficient for the purpose of staying proceedings upon that branch of the judgment which directs a sale of the premises in question, but was not sufficient to stay proceedings upon that branch which gives a personal judgment against the defendants, and Lewis might at any time have proceeded by execution to enforce the collection of the money.
As to the point made by the respondents to the effect that a sale of the premises, if no lien exists, would not create a cloud upon the plaintiff’s title, we think the facts of the case bring it within the rule announced in Shattuck v. Carson, 2 Cal. 588; in Guy v. Hermance, 5 Cal. 73; in Alverson v. Jones, 10 Cal. 11; and in Pixley v. Huggins, 15 Cal. 127.
The judgment is reversed and the Court below directed to render a judgment in favor of the plaintiff, in conformity with the prayer of the complaint.
Rehearing
So far as the character and legal effect of the judgment in Lewis v. Covillaud and Nye are concerned we have announced no new principle, but have merely applied to the facts of this case principles which were established in Rollins v. Forbes, Rowland v. Leiby, and in Chapin v. Broder, cited in our former opinion. The following principles are established by those cases: In a foreclosure case the plaintiff may recover a personal money judgment and a decree forclosing the mortgage and directing the land to be sold for the purpose of satisfying that personal judgment; and secondly, if he does not obtain a personal judgment, but contents himself with the decree in use under the old chancery practice, such decree does not become a lien, under the two hundred and fourth section of the Practice Act. On the contrary, no lien attaches under such a judghent until after a sale has been had and the deficiency, if there be one, is ascertained and docketed, and then only for the amount of such deficiency. This twofold judgnent is the fruit of our system of practice and beautifully exemplifies its superiority. Under the old system two suits would have been necessary in order to accomplish the same result. The result being accomplished the plaintiff might, under the old system, proceed by ft. fa. upon his judgment at law, or he might proceed under his decree in equity, but he
In this connection it is proper to remark that counsel have fallen into this fundamental error. They assume and argue that if A. gives B. his promissory note, and mortgages his land to.secure its payment, B. thereby agrees to look to the land as a" primary fund for the payment of his debt, and A. has the right to insist that he shall do so. We know of no such rule either at law or in equity. The mortgage is made for B.’s
The cause of this tergiversation is apparent. In Chapin v. Broder it was held that where there was no personal judgment there could be no lien, under the two hundred and fourth section of the Practice Act, until after a sale of the mortgaged premises and the docketing of the deficiency. To admit, therefore, that there is not a personal judgment is to admit that there is no lien, which is the sole question in controversy in the present case.' Hence, in order to maintain their standing in Court, counsel are compelled to insist that there was a personal judgment. Then, having fortified themselves against ticylla upon the one hand, they are forced to guard against ,,.Qharybclis on the other; but in order to do the latter they ' cannot admit that the personal judgment carries with it the right to a fi. fa., for there is no appeal bond which stays its execution, and more than two years have elapsed since the judgment was docketed, and the lien is therefore lost. Hence they claim a personal judgment which cannot be executed until after a sale under the decree, and then only to the extent of a deficiency, should there be one-:—a judgment, when considered as a personal one, confessedly felo de se in part, and perhaps
In support of the theory that the personal judgment is not full-fledged, counsel call attention to the fact that it does not terminate with the ordinary phrase “ for which let execution issue,” and that nothing is said about the issuing of an execution until we come to the end of the decree, where the issuing of an execution, for any deficiency which may be found to exist, is authorized, and that therefore the judgment, by its own terms, is made to prescribe the order of its own execution, and that the order thus prescribed cannot be departed from except by special license of the Court. Admitting this to be so, it is not a little surprising that counsel do not perceive that a consequence must follow which is fatal to their case, by destroying entirely the judgment lien, upon which alone they rely. By this construction the money part of the judgment is made dependent upon the decree for its enforcement, and the mortgaged premises are made a primary fund, which must be exhausted before a fi. fa. can issue. Thus the judgment is provided with a special lien, resulting from its own terms. To such cases the two hundred and fourth section does not apply. That section creates no additional lien where one already exists, until after the special lien has been exhausted, and then only to the extent of the deficiency. It was so held in Chapin v. Broder. That section was intended to secure a lien only for such judgments as are purely money judgments, without any lien resting in contract, or in other words judgments which are to be enforced by fi. fa. Thus, the only theory upon which* it can be claimed that the judgment in Lewis v. Covillaud and* Nye became a lien under that section is the one which we have adopted, to the effect that there was a personal money judgment, so far independent of the decree that it could, at the election of the plaintiff, be first enforced by a fi. fa. That there was such a judgment we have no doubt. The mere fact that it did not conclude with the phrase “ for which let execution issue,” has no significance. That phrase is unnecessary.
Rehearing denied.
