50 Cal. 511 | Cal. | 1875
Lead Opinion
1. The judgment in the action of Hibberd v. Chipman and Aughinbaugh was docketed in such a manner as to constitute a lien on the real property of the defendants therein. The statute required that the names of the defendants should be entered in the docket in alphabetical order. (Pr. Act, Sec. 205.) It was evidently intended that the surnames should precede the Christian names, and the omission of the Christian name of the defendant Chipman did not deprive the docket of its useful function of directing
2. As against judgment creditors of W. W. Ghipman, his deed to E. S. Ghipman was not delivered until after the Hibberd judgment was docketed.
3. Under the practice in chancery—except in cases of strict foreclosure, when the decree deprived the mortgagor of his right to redeem—the decree of foreclosure operated in rem, and directed a sale of the mortgaged premises. Such decree did not possess the qualities of a judgment in an action at law, on which execution could issue, to be levied on the general property of the mortgagor. But, by section 246 of the Practice Act of 1851, it was provided: “In an action for the foreclosure or satisfaction of a mortgage of real property, etc., the court shall have power by its judgment to direct a sale of the property, or any part of it; the application of the proceeds to the payment of the amount due on the mortgage, etc., with costs, and execution for the balance.”
In entering the judgment in Hepburn v. Chipman, the form was adopted which is provided for in the statute just quoted.
This judgment is substantially like those of Drexel, Sather & Church, and Freaner, as the judgments in those two cases were assumed to be in the original opinion of the Supreme Court in Chapin v. Broder (16 Cal. 403). There the court declared (p. 421) the question to be, at what time did the lien of such a judgment attach: when it was docketed, or when a deficiency was ascertained by the return of the sheriff after sale ? After saying that the court had previously held that the statute authorized a personal judgment against the mortgagor, and that in case of such personal judgment its docket would make it a lien, the opinion in Chapin v. Broder proceeds: “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 judg
It is true, that in the opinion delivered on the petition for a rehearing, it seems to be admitted that the court had received from the report of the referee an erroneous impression in respect to the character of the judgment of Drexel, Sather & Church. But it is there reasserted that the judgment of Freaner created no personal liability, except for the payment of the deficiency; and the result is, that what was said in the original opinion in respect to the time when the lien would attach in case of such judgment, was left undisturbed by the opinion delivered on the petition for rehearing.
It is also true that in the opinion last mentioned, it is intimated that even in case of judgment against the mortgagor personally, the limitation on the lien would not commence until the deficiency was ascertained. But this has been overruled in Englund v. Lewis (25 Cal. 350), and in other cases.
We see no reason ior departing from the rule, as laid down in Chapin v. Broder, and, therefore, hold that on the return of deficiency in the action of Hepburn v. Chipman, a lien attached on all the real property of the defendant therein within the county. ,
4. The execution offered by defendants, although irregular, and defective in form, was amendable and not void. The court below, therefore, erred in sustaining plaintiff’s objections. That this error injured the defendants, sufficiently appears from what has been said in regard to the lien of the Hepburn judgment.
5. H, as has been suggested in argument, the rights of Hibberd and Duncan, under the latter of whom defendants deraign, were adjudicated in a former action, the proof of
Judgment and order reversed and cause -remanded for new trial.
Dissenting Opinion
I concur in the opinion of a majority of the court, except on the third proposition discussed. On that point I dissent, and also from the judgment.
Mr. Chief Justice Wallace, having been of counsel in this cause in the court below, did not participate in its decision here.
