231 P. 730 | Cal. | 1924
This appeal is from an order of the trial court denying the motion of the appellants to recall and quash a writ of execution. The history of the transaction and of the litigation between the parties hereto which finally resulted in the issuance of said execution and the motion for its recall, the denial of which led to this appeal, is quite fully set forth by this court upon a former appeal in this case, reported in Montgomery v.Meyerstein et al.,
"1. That said writ of execution was wrongfully, unlawfully and improperly issued.
"2. That the judgment in the said action does not direct the issuance of the said writ of execution, or of any writ of execution, nor the sale of the property described in the said *42 judgment and writ of execution, and does not foreclose any lien of plaintiff.
"3. That the said writ of execution does not require the sheriff to satisfy the said judgment out of the personal property of the judgment debtor therein if sufficient personal property can be found for that purpose, but instead orders the sale of the specific real property described in said judgment and said writ of execution.
"4. That neither the said judgment nor the said writ of execution contains any direction as to the application of the proceeds of any property sold thereunder.
"5. That no notice of intention to apply for the issuance of the said writ of execution was given to the other lien claimants named in the said judgment.
"6. That the lien of said plaintiff in satisfaction of which the property described in the said judgment is about to be sold by plaintiff was extinguished on October 15, 1921, by the sale of the said property by Alfred L. Meyerstein as trustee, under the deed of trust referred to in the said judgment, to Walter H. Linforth, pursuant to the terms of said deed of trust, and that the said Walter H. Linforth is now the owner of said real property free and clear of the said lien of the said plaintiff."
Upon the hearing upon said motion affidavits and counter-affidavits were offered and read in evidence by the respective parties to the action and upon its submission the trial court denied said motion; and it is from its order denying the same that this appeal has been taken.
While there are numerous questions discussed by counsel for the respective parties in their briefs herein it seems to us that the primary question presented by the record herein relates to the right of the plaintiff in this action to have an execution issued for the enforcement of the judgment which she now holds in this action against the specific property described therein. This was an action in equity wherein the plaintiff sought the rescission of a contract for the purchase and sale of the piece of real estate described in her complaint upon the ground of fraud, and also sought to have declared and imposed upon said property the purchaser's lien provided for in section
The respondent, however, insists that the provisions of subdivision 1 of section
Bearing in mind that the plaintiff in this action has been seeking throughout it not merely the obtaining of a personal money judgment against Otto A. Brown in an ordinary action at law, but that she was and is seeking as the primary object of this action the aid of a court of equity in the establishment of her purchaser's lien upon the specific real estate affected by it; and bearing in mind also that in her application for a writ of execution she is seeking in effect the foreclosure of such lien by means of a judicial sale of said premises through the medium of such writ, we must look to the section of the Code of Civil Procedure which relates to the enforcement of judgments or decrees of that character and which defines the nature and extent of such a writ; and we find it in section
The respondent herein contends, however, that even if it be conceded that the writ of execution assailed herein be defective in the above or any other respect, the appellants herein were not shown to have had any such interest in the real property affected thereby, at the time of making their said motion to recall and quash the same, as to be entitled to be heard upon said motion The burden of the respondent's showing upon the hearing on said motion was directed to the several propositions that as to the interest of the appellant Meyerstein in said property it affirmatively appeared that he had long prior to the entry of said judgment, the issuance of said writ, and the presentation of said motion to recall and quash the same wholly parted with all of his right, title, or interest therein in his own right by the conveyance thereof to William H. Levings and wife by grant *47 deed executed on March 7, 1921, and recorded on March 11, 1921; and that in so far as the said Meyerstein had any interest in said real estate by virtue of the deed of trust made to him by Otto A. Brown to secure the indebtedness of the latter to the Forest Hill Realty Company, such interest had been merged in the conveyance of said property which he had later received from the said Forest Hill Realty Company and passed to the Levings by virtue of his said grant deed to them; and that if it did not so pass his said interest as trustee of said property was sold at the trustee's sale under the terms of said deed of trust and thus ceased to be, in so far as said Meyerstein is concerned; and that in so far as the alleged interest in said property in the appellant Linforth is concerned he had none, for the reason that prior to the sale of said property under the terms of said deed of trust to him the interest created by said trust deed had already ceased through the merger thereof in the greater title which Meyerstein had acquired to the property through the deeds both of Brown and of the Forest Hill Realty Company to him, and hence that Linforth acquired nothing by his purchase of said property at trustee's sale; and for the further reason that to whatever distance Meyerstein has separated himself from having any further interest in said real estate he has also carried Linforth, who, by his own admission, has been acting throughout as the agent of Meyerstein and not otherwise. These several reasons powerfully influenced the trial court in arriving at the conclusion that the appellants were entitled to no relief upon their said motion; in fact, they are the only reasons which can be offered as a justification for its said order denying the appellant's motion for the recall of said writ. Assuming the foregoing facts relied upon by the respondent to have been the proper subject of proof upon the hearing of a motion to recall an execution, and assuming them to have been fully proven, we are not convinced as to their sufficiency to justify the court's order. Having determined that said writ of execution was utterly void as lacking both the statutory and the decretal authority for its issuance, we think that it was the duty of the trial court of its own motion and upon the essential invalidity of said writ being brought to its attention from any source to recall and quash it. The fact that the *48 moving parties in a motion for such an order were for any reason not qualified to urge such motion would in nowise affect the duty of the court in this regard. But aside from this we are far from satisfied that the reasons offered by the respondent constitute good ground for denying at least one of said appellants the right to urge said motion. Alfred L. Meyerstein is one of the original parties defendant in this action and in the judgment or decree therein is decreed to be entitled to a superior lien upon said real estate to which the lien of the plaintiff herein is made subject. As to said defendant Alfred L. Meyerstein the plaintiff was denied any relief by the express terms of said decree. On the face of the record in the action said Meyerstein at the time he made said motion appeared to be entitled to make the same, both because he was a party to the action and because by the very terms of the judgment he was decreed to have an adversary interest in the real estate involved therein. This being so we gravely doubt that the trial court would be justified in refusing to permit such a party to be heard upon a motion for the recall of a void execution upon the ground that on account of some collateral transactions subsequent to the judgment he had ceased to be interested in the property to be affected by such void and irregular process. He was still a party to said action, and even though he had parted with all interest therein or in the property affected thereby his transferees would be entitled under section 385 of the Code of Civil Procedure to have the same continued in his name and to assert or defend their acquired interests in his name. Besides, the undisputed fact appears in this record that at the time of the conveyance by Meyerstein of the property affected by this writ to the Levings he had entered into a written agreement to hold harmless his said grantees against the claim of the plaintiff in this action against said real estate or any lien asserted by her thereon. We think that as to the appellant Meyerstein at least the foregoing undisputed facts would suffice to entitle him to appear in resistance to this writ and to move for its recall. This being so it is unnecessary to determine what the rights or interests of his coappellant Linforth may be in the premises. It would seem clear that the trial court was in *49 error in making its order refusing to recall and quash the writ of execution improperly issued herein.
The order is reversed.
Myers, C.J., Shenk, J., Seawell, J., Lennon, J., Waste, J., and Lawlor, J., concurred.