179 P. 190 | Cal. | 1919
This is an action to enjoin the sale of certain land in Fresno County under a writ of execution issued upon a judgment of the superior court of Fresno County in favor of defendant Fearon against one Rauer for $513.25. The plaintiffs were the purchasers of said land at a sale thereof under execution issued upon a judgment of the superior court of Fresno County in favor of one Webb against said Rauer for $15.90, and the time for redemption from said sale having expired, they had received the sheriff's deed to said land before any levy was made on the land under the Fearon judgment execution. Plaintiffs had judgment herein, and defendants appeal therefrom.
The Fearon Judgment was the prior judgment. It was given and docketed against Rauer on March 13, 1912. The Webb judgment was given and docketed against Rauer on June 10, 1912. Rauer had no interest in the land here involved prior to October 22, 1912, on which date he became the owner thereof. This, it will be observed, was some months after the recovery and docketing of both judgments. Thereafter a writ of execution under the Webb judgment was issued and levied upon the land, and a sale had, and, no redemption having been had, the plaintiffs received their sheriff's deed January 20, 1914. Thereafter, viz., on May 10, 1915, the writ of execution was issued on the Fearon judgment and levied on the land.
The principal question presented is whether as to this after-acquired land the lien of the prior judgment, given by section 671 of the Code of Civil Procedure, was the prior and paramount lien. If it was, of course the sale of the land under the junior judgment execution was made subject to the prior judgment lien, and such prior lien could be enforced by execution, levy, and sale without regard to the sale under the junior judgment. But if it was not the prior lien as to this land, it seems manifest to us that the purchasers at the sale acquired the land free of the lien. *73
[1] It being true, as was said in Boggs v. Dunn,
[3] It follows from what we have said that the judgment liens here involved were equal, neither party having priority over the other.
The necessary consequence of this conclusion, it appears to us, is that the purchaser at the sale under the execution issued on the Webb judgment took a title free of all claim based on *75
the Fearon judgment lien. [4] The situation in this regard was well expressed in Elston v. Castor,
No question as to any possible right of Fearon to share with Webb in the proceeds of the sale upon the execution on the Webb judgment is material in this action, and therefore any such question need not be here discussed.
Plaintiffs being by virtue of their purchase and deed the owners of this land free of all claims based on the Fearon judgment were entitled to the relief sought by them.
The judgment is affirmed.
Shaw, J., Wilbur, J., Lennon, J., Sloss, J., Melvin, J., and Lawlor, J., concurred. *76