Main v. Tappener, 43 Cal. 206

Main v. Tappener

43 Cal. 206 | Cal. | 1872

By the Court,

Crockett, J.:

The only question on this appeal is, whether an attachment of real property, standing on the records of the county in the name of defendant, and which was served by first filing a copy of it with the County Recorder, together with a description of the property attached, and by afterwards, with all reasonable dispatch, serving a copy on the occupant of the premises, will overreach a conveyance, made by the defendant to a purchaser in good faith, and for a valuable consideration, intermediate the filing of the coj>y with the Recorder and the service of a copy on the occupant. Section one hundred and twenty-five of the code provides that an attachment of real property standing on the records of the county in the name of the defendant shall be served “ by leaving a copy of the writ with an occupant thereof, or, if there be no occupant, by posting a copy in a conspicuous place thereon, and filing a copy, together with a description *209of the property attached, with the Recorder of the county.” To complete the service and create a lieu, hoth the acts required by the statute must be performed. Reither the filing with the Recorder, without the service or posting of a copy, nor the performance of the latter acts without the filing will amount to a service of the attachment and create a lien on the property. The performance of both acts is essential to create the lien. (Wheaton v. Neville, 19 Cal. 44.) But in addition to this the requisite acts must be performed in the order in which they are named in the statute—that is to say, the service on the occupant or the posting on the premises must precede the tiling of a copy with the Recorder, which latter act was intended to give notice to third persons dealing with the property that it had been attached. It was only then for the first time that it had in fact been attached; and if the copy be first filed with the Recorder, and a copy be afterwards served on the occupant or posted on the premises if there be no occupant, it is clear that during the interval which elapsed between the filing and a service of a copy on the occupant or the posting, as the case may be, the filing of the copy could not impart notice of a fact which did not exist, to wit: that the property had been attached; for it could not he, in fact, attached in any case until after the service on the occupant or the posting on the premises. It is obvious, therefore, that the statute intended that the service or posting of the copy should precede the filing of a copy with the Recorder, “together with a description of the property attached.” The property was then for the first time attached; and this was the fact of which the filing was intended to give notice. I am, therefore, of opinion that the purchaser from the defendant in the attachment suit took the title free from the alleged lien.

The doctrine of relation invoked by the plaintiffs has no application to the question involved here; for, as we have *210already seen, the filing of the copy with the Recorder could, in no event, operate as a constructive notice to Howard, unless preceded by the delivery of a copy of the writ to the occupant or the posting of the notice upon the premises, if unoccupied.

Judgment affirmed.