| Cal. | Jul 1, 1858
Terry, C. J., and Field, J., concurring.
This controversy has relation to a lot in Sacramento city, both parties claiming title under Arents and Chedic. Reynolds & Co. obtained judgment against Arents and Chedic on the 11th of October, 1853, upon which execution was issued and levied 4th of October, 1855, and the property sold by the sheriff on the 20th of October, 1855, to the vendor of plaintiff. On the 8th of June, 1854, the defendant, Swift, obtained judgment against Arents and Chedic, upon which execution was issued and levied in February, 1856, and the property sold to defendant by the sheriff in March, 1856.
It will be seen that the execution upon the judgment of Reynolds & Co. v. Arents and Chedic, was issued and levied seven days before the expiration of two years from the date of the judgment, and that the sale was made some nine days afterwards. The question is, whether the issue and levy of this execution, before the lien of the judgment expired, had the effect to prolong the lien beyond the time limited by section two hundred and four of the Code. That section provides, “ that from the
The New York Statute of 1813, concerning Judgments and Executions, provided that “ all judgments hereafter to be rendered, shall cease to be a lien or incumbrance upon any real estate, as against bona fide purchasers, or subsequent incumbrancers by mortgage, judgment, or otherwise, from and after ten years from the time the same shall be docketed.” (1 R. L., 500.)
In the case of Roe v. Swart, (5 Cowen, 294,) the Court said : “ The words leave no room for doubtful construction.” So, in the case of Little v. Harvey, (9 Wend., 158,) it was said, by Sunderland, J., in delivering the opinion of the Court, that “the language of the act is too clear to admit of any question as to its construction.” It was, accordingly, held in both these cases, that the issue and levy of the execution before the expiration of the ten years, would not extend the lien beyond the time mentioned in the statute, “unless the plaintiff has been restrained from issuing execution by injunction out of Chancery.” This is the settled doctrine in that State. (18 Wend., 621; 1 Cowen, 481.)
By an act of the Legislature of the State of Mississippi, approved February 24, 1844, it was provided that “no judgment heretofore rendered in this State shall be a lien on the property of the defendant or defendants, for a longer time than two years from the passage of the act.” Under this provision, it was held that the execution must issue and the sale be made within the two years; otherwise the lien of the judgment was lost. The issue and levy of an execution within the time limited, would not prolong the lien of the judgment. (Rupert v. Dantzler, 12 S. & M., 697.) The decision in the case was expressly approved by the Court in the subsequent case of Beirne v. Mower, (13 S. & M., 427.)
The statute of 1799 provided that no execution should be levied, or sale of lands made, which might affect the title of a bona fide purchaser, unless the execution was levied and the sale made within twelve months from the rendition of the judgment. It was, accordingly, held that the sale must be made within the time limited by the act. (Dickenson’s Lessee v. Collins, 1 Swan. Tenn. R., 516.)
By the statute of Texas, passed 5th of February, 1840, (Acts 4th Cong., 95,) a final judgment was made a lien on all the property of the defendant, situated and being in the same county where judgment was rendered, “ provided that said lien shall
Under this act, it was held, in the case of Shephard v. Bailleal, (3 Tex., 26" court="Tex." date_filed="1848-12-15" href="https://app.midpage.ai/document/shapard-v-bailleul-4887058?utm_source=webapp" opinion_id="4887058">3 Texas Rep., 26,) that the lien of the judgment ceased if execution was not issued within the year, unless the issuing of the execution was prevented by some legal impediment.
In the case of Trapnall v. Richardson, (8 Eng. Rep., 543,) it was held, by the Supreme Court of Arkansas, that a levy upon land, within three years of the date of the judgment, would not continue the judgment-lien beyond that period.
In considering these authorities, it must be conceded that the terms of the several statutes mentioned are stronger than the language of section two hundred and four of the Code. The language of the former is, substantially, that the lien shall not continue, or shall cease after the period stated; while the language of the statute of this State is, that the judgment shall continue to be a lien for two years. But we can not see any substantial difference in the meaning of these different forms of expression. The section two hundred and four creates the lien of the judgment, and also fixes the period of its continuance. Taking the different portions of the section together, and the intent is clear that the lien should not continue beyond the time specified. The power that creates, confines the existence of the thing created within a specified period. The lien itself would not exist without this provision of the statute; and, of course, can not exist beyond the time expressly stated. We could as well assume the existence of the lien in the first instance, without the statute, as to assume its continuance without the statute. It required express words to create the lien, and it equally requires express words to continue it beyond the time specified. Had the Code simply created the lien, without limiting the period of its existence, then we could not presume that any limit was intended. But, when a limit is expressly stated, we can not presume a continuance beyond it.
The rule that confines the lien of the judgment strictly within the two years, is the most simple and certain in theory, and the most beneficial in practice. If we hold that the lien" of the judgment may be prolonged beyond the period stated, by the issue and levy of an execution within the time, then we can fix no definite and certain limits to the continuance of the lien. Once we pass the limits of the statute, we open a door to the most vexatious litigation. The titles to real estate would become uncertain, and the useful end intended to be accomplished by our recording system, would, in fact, be defeated. A party wishing to purchase the land of the judgment-debtor, could not do so with safety without the exercise of extraordinary diligence. The provisions of the code give the judgment-creditor ample protection. He can cause an execution to issue at any time;
We have carefully examined the authorities cited by the learned counsel for the plaintiff. The case of Taylor v. Miller (13 How. U. S. Rep., 287) is not in point. The question whether the issue and levy of an execution could prolong the lien of the judgment beyond the period stated, did not arise in that case. There is nothing in the opinion of the Court that conflicts with 'the view we have taken. The judgment was a lien upon the property of Crane, the judgment-debtor. Execution was issued and levied upon the land; but the sale could not be made for the want of legal bids, and the papers were returned to the clerk’s office. Crane having died within about one year, a writ of venditioni exponas was issued, commanding the sheriff to sell the land; and, under this writ, the sale was made. It was objected that this writ could not be issued until after the revival of the judgment upon scire facias against the heirs. The Court held, that the property was in the custody of the law—that the lien of the execution was not lost, and the sale, under the venditioni exponas, was valid, this writ being regarded as merely “ a continuation and completion of the previous execution."
The cases of Pennock v. Hart, (8 Ser. & R., 369,) The Com. v. McKisson, (13 Ser. & R., 144,) and Bell v. Ingraham, (2 Barr, 490,) are certainly in point for the plaintiff But the weight of reason and authority would seem to be against the doctrine of those cases. The' injurious consequences flowing from these decisions, induced the Legislature of Pennsylvania to pass the act of twenty-sixth of March, 1827, under which it has since been held that the issuing of a fi. fa. within the period mentioned in the statute, will not extend the lien of the judgment beyond such period. (Davis v. Ehrman, 8 Harris, 256.) The remarks of Woodward, J., in the last case, and of Chief Justice Watson, in the case of Trapnall v. Richardson, (8 Eng. Ark. Rep., 556,) are very forcible, and clearly point out the evils of the rule contended for by plaintiff’s counsel in this case.
The case of the Bank of Mo. v. Wells (12 Mo., 361" court="Mo." date_filed="1849-01-15" href="https://app.midpage.ai/document/bank-of-missouri-v-wells--bates-6612682?utm_source=webapp" opinion_id="6612682">12 Mo. Rep., 361,) was different in its circumstances; and the decision is not precisely in point. The sale, within the time limited, was prevented by a statute changing the time of holding the terms of the Circuit Courts—at which all sales of real estate were required to be made.
As the question does not arise in this case, we express no opinion as to whether, in ease the sale be prevented by injunction, or other legal impediment, the lien of the judgment must
Judgment affirmed.