1 Colo. L. Rep. 25 | Cal. | 1880
The action is brought to enjoin the defendants from selling the land described in the complaint, under an execution issued upon an order of the late District Court of Los Angeles County, whereby the defendant Alexander, Sheriff of the County of Los Angeles, was commanded to proceed and sell all the title and interest which one E. F. de Celis had in the land on the 2nd day of January, 1877, and which had been on that day levied on by a writ of attachment issued in an action brought by the defendant Pico against the said de Celis. The plaintiff is in possession of the land, claiming to be the owner of it by judgment, execution sale, and sheriff’s deed, in an attachment suit, commenced on the 24th day of December, 1876, by one W. It. Rowland against the same judgment debtors, and also by a
The case of Chapman v. Celis was a judgment rendered by a justice of the peace on the 81st of October, 1876. A transcript of the judgment was filed November 1st, 1876, and, by an execution issued thereon, the land in dispute was sold on the 27th of November, 1877. From the purchaser at the sale, the plaintiff, as the successor in interest of Celis, redeemed the land, and on the 8th day of June, 1878, the Sheriff executed and delivered to him, as rodeinptioner, a deed of all the right, title, and interest, which the “judgment debtor had in the land on the 1st day of November, 1876, or at any time thereafter.” Under these conveyances, plaintiff was let into possession of the land, and was in possession when this action was brought.
It is contended that the deed made to the plaintiff as a redemptioner was void, and transferred no title; that the proceedings by attachment in the Rowland case were irregular and defective, and created no lien; that the sheriff’s deed conveyed to the plaintiff only the estate which the judgment debtor had in the land on the 21st of April, 1877, and that that was subject to the prior attachment lien of the defendant created by the levy of his attachment on the 2nd day of January, 1877.
We think it is clear that a sheriff’s deed, executed in pursuance of an execution sale under a judgment rendered in an attachment suit, takes effect from the levy of the attachment, if the levy is such as to create a lien. Now, in the case in hand,
In Wheaton v. Neville, 19 Cal. 44, it was decided that two acts were necessary to create an attachment lien, to wit, service on the occupant, or posting on the premises, and filing in the Recorder’s office. In Main v. Tappener, 43 Cal. 206, it was held that both acts must be performed in the order in which
The Court had jurisdiction of the parties, of the subject-matter, and of the property which had been taken by the writ of attachment; and any errors of law in the record of the case must be disregarded by a court when the record is introduced collaterally as evidence of title to the property which had been attached. The objections which wrere made to the affidavit, undertaking, and writ of attachment, were, therefore, properly
Perhaps it would be more in accordance with the fitness of things to deal with the fact of the levy of the attachment as of an incipient execution, by which the officer has taken into his possession the subject of the levy for the satisfaction of any judgment which might be recovered, and to order him, after judgment, to sell the specific property for that purpose. Under the other practice, the levy of the attachment, upon the principle of transit in rem judicatam, becomes merged in the judgment, and the judgment perpetuates the lion of the levy, and the sheriff’s deed perfects the title which passes by the sale under the judgment and relates to the date of the levy. Upon these principles, it is not necessary for the Court, in order to enforce priority of lien, to make an order for the sale of the property attached, or to issue a venditioni exponas. The execution upon the judgment is a sufficient authority to the Sheriff to sell the real property which he has in his possession, and the deed which he makes relates back to the date of the lien perpetuated by the judgment.
If this be not so, a subsequent attachment lien would give an attaching creditor a lien superior to the title of a purchaser in
The case of Lamont v. Cheshire, 65 N. Y. 30, does not conflict with these views. By § 132 of the New York Code, as it stood in 1859, the plaintiff in an attachment suit was required to file a lis pendens, which, from the time of filing, operated as constructive notice to a purchaser or incumbrancer of the property affected thereby ; and the question presented for consideration in the case was, whether a person whose conveyance was recorded subsequent to the filing of a lis pendens in certain attachment suits, was to be deemed a subsequent purchaser or incumbrancer within the meaning of that section. The defendant in the case had, by purchase from the judgment debtor, a month before the filing of the lis pendens in the actions, acquired a title regular in all respects except that he had not recorded his conveyance, but the attaching creditors knew of the existence of the deed; and the Court held that the deed of the plaintiff, obtained from the Sheriff at execution sale, although registered, passed no title whatever, when taken with knowledge of the existence of the prior unrecorded deed.
As in that case the title of the judgment debtor had passed to the purchaser before the filing of the lis pendens in the attachment suits, so in this the title of the plaintiff, which originated in the levy of a writ of attachment older than that claimed by the defendant, must prevail against the junior lien claimed by the defendant; and as successor in interest of the judgment debtor, the plaintiff was entitled to redeem the land conveyed to him from the Chapman sale, under § 701 of the Code of Civil Procedure. The defendant, Pico, as a judgment creditor, had also the same right; but he failed to exercise it.
No question is made as to the regularity of the proceedings in the Chapman case. The legal effect of the deed to the redemptioner by the Sheriff is the only thing called into question. But so far as the plaintiff’s title is concerned, the question is in no way material. The redemption had at least the effect of releasing the plaintiff’s land from the sale under the Chapman judgment. That seems to have been the view taken of it by the Court below, and of that the defendant cannot complain, for it is in no way to his prejudice.
Judgment and order denying motion for new trial affirmed.
MTRICK, J., concurred.
Thornton, J., concurred in the judgment.