31 Cal. 220 | Cal. | 1866
Lead Opinion
This is an appeal from an order of the District Court, granting a writ of assistance under the provisions of sections forty-four and forty-five of the Revenue Act of 1861, to put a purchaser at a tax sale in possession of the premises purchased. The application for the writ was based upon the Sheriff’s deed alone. The judgment upon which the sale took place appears from the recitals of the deed to have been obtained in the Court of a Justice of the Peace. It must, therefore, have been a money judgment without any order of sale. (People v. Mier, 24 Cal. 61.) A transcript of the judgment was filed and docketed with the County Clerk, and thereby became a lien. The execution upon which the sale took place issued from the office of the County Clerk. Upon the hearing of the application, the respondent offered in evidence the Sheriff’s deed, to which appellant objected on the ground that the judgment under which the sale was made and the deed executed, had not been produced. The Court overruled the objection, and admitted the deed, to which appellant excepted. The only evidence offered was the deed and proof of service of a copy upon the party in possession, and of a demand to be let into possession. It is a general rule that a party claiming under an execution sale must produce the judgment upon which the execution issued. (Sullivan v. Davis, 4 Cal. 291; Hihn v. Peck, 30 Cal. 287.) But it is provided in section forty-five of the Revenue Act of 1861 that “ any deed derived from a sale of real property under this Act shall be conclusive evidence of title, except,” etc., (Laws 1861, p. 435, Sec. 45,)
The judgment, as before stated, must necessarily have been a money judgment only, without any order of sale, and it may be a serious question whether it is competent to authorize a writ of assistance in such cases. The judgment when docketed is a lien upon all other real estate of the party assessed, and bound by the judgment, as well as upon the property assessed in like manner as ordinary judgments in civil cases. The sale is made under and by virtue of a money judgment simply, like sales under judgments in ordinary civil cases; consequently parties who have not been heard may be turned out under the writ of assistance provided for in the Act of 1861. Writs of assistance might just as well be authorized to issue for the purpose of putting the purchaser of real estate sold under ordinary judgments in possession, upon a provision that the deed shall be conclusive evidence of title. The question might arise whether such proceedings would be by due process of law. The cases in which writs of assistance have heretofore been employed are such as determined the question of title to the specific piece of real property in that very case, or where the interest of the defendant has been directed by the judgment to be sold. All the rights of the parties have been investigated and adjudged, and the writ of assistance is a part of the process employed in enforcing the judgment itself. But this question is not presented by the record, and it is unnecessary to decide it now. The deed was improperly admitted without the proceedings upon which it was based. The facts before the Court, and the matters set forth in the notice of application, were insufficient to authorize the issuing of the writ.
Order reversed with directions to dismiss the proceeding.
Concurrence Opinion
I concur in the judgment on the ground that District Courts have no authority to issue writs of assistance in cases of sales upon tax judgments rendered by Justices of the Peace. The power is limited to sales on judgments and decrees rendered by the District Court to which the application for the writ of assistance is made. It is not only anomalous that one Court should be charged with the duty of carrying into effect the judgments of another, but the provision (Acts 1861, p. 453, Sec. 45,) that the Sheriff’s deed “ shall entitle the holder thereof to a writ of assistance from the District Court ” carries with it the idea that the Legislature did not intend to confer the power to issue writs upon the District Courts at large, but upon the District Court in which the proceedings for the collection of the delinquent tax were taken.