Wheaton v. Neville, 19 Cal. 41

Wheaton v. Neville

19 Cal. 41 | Cal. | 1861

Field, C. J. delivered the opinion of the Court

—Baldwin, J. concurring.

The statute provides that an attachment of real property shall be made by the officer to whom the writ is directed, “ by leaving a copy of the writ with the 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 of the property attached, with the Recorder of the county.” (Prac. Act, sec. 125.) The *45two acts prescribed—the delivery to the occupant of a copy of the writ, or the posting of a copy upon the premises, as the case may be, and the filing of a copy with the Recorder, together with a description of the property attached—must be done before the lien of the attachment is perfected. The omission of either is fatal to the creation of the lien. . The two acts being requisite to perfect the attachment, the counsel of the respondent contends that so soon as the last act is performed, provided this be done within a reasonable period, the doctrine of relation comes in and gives effect to the lien from the date of the first act. The situation of the property, it is said, may be at such distance from the county seat that it will be impossible for the officer to file the necessary papers with the Recorder on the day in which a copy of the writ is delivered to the occupant or posted upon the premises. A reasonable period, therefore, it is urged, must be allowed for the completion of the attachment. It is unnecessary for the determination of the present case to express any opinion upon the point whether the doctrine of relation has any application. We may observe, however, that it is the duty of the officer, after he has once entered upon the execution of the writ, to complete its execution with diligence. In the case at bar, the writ was issued at the commencement of the action of Scott, Vantine and others against Brown, on the twenty-sixth of August, and a copy was delivered to the occupant of the premises, or posted upon them, (and it is immaterial for the determination of the appeal which course was pursued) on the twenty-ninth of the same month. On this last day, the writ was returned with a certificate of the Sheriff’s proceedings, and filed in the Cleric’s office; but no copy of the writ, with a description of the property, was filed with the Recorder until the ninth of September following. On the sixth of September, Dimock purchased and took a conveyance of the premises from Brown; and the question for determination is, whether the subsequent filing of the papers in the Recorder’s office gave effect to the attachment from the date of the posting or delivery of the copy of the writ, so as to create a lien upon these premises.

We are clear that the filing in the Recorder’s office had no such effect, independent of any consideration of the applicability of the doctrine of relation. After the return of the writ to the Clerk’s *46office, the Sheriff had no authority to take any proceedings for the completion of the attachment, which he had previously omitted. Its efficacy, as a warrant of authority to him, was limited to acts performed whilst it remained in his possession. The filing was, therefore, ineffectual for any purpose ; and the posting of a copy of the writ upon the premises, or the delivery of a copy to the occupant, was, of itself, as we have stated, insufficient to perfect the attachment. There was, in consequence, no lien created upon the premises.

At the time Dimock purchased the property and took his conveyance, both he and Brown were aware of the issuance of the attachment, and that the Sheriff had taken the first step to levy it upon the premises, and hence it was contended on the argument, that the conveyance was void as being intended to hinder, delay and defraud Scott, Vantine and others in the collection of their demand. But there is nothing in this point. Brown was indebted to Dimock for money loaned, and for materials furnished and work done in the construction of the building on the premises attached, and the conveyance was given in payment of the indebtedness. In this transaction, neither Brown ñor Dimock violated any rule of law, even though they knew the effect would be to prevent the subjection of the property to the payment of the debt of Scott, Vantine & Co. As we said in Dana v. Stanfords, (10 Cal. 277) a conveyance giving a preference “ is not fraudulent, though the debtor be insolvent, and the creditor be aware at the time that it will have the effect of defeating the collection of other debts. To avoid the conveyance, there must be a real design on the part of the debtor to prevent the application of his property, in whole or in part, to the satisfaction of his debts. A creditor violates no rule of law when he takes payment or security for his demand, though others are thereby deprived of all means of obtaining satisfaction of their own equally meritorious claims. (Nicholson v. Leavitt, 4 Sand. 252 ; Covanhovan v. Hart, 21 Penn. 495 ; Warland v. Kimberlin, 6 B. Mon. 608 ; Kinnard v. Adams, 11 B. Mon. 102).”

It follows from the views we have expressed, that the judgment of the District Court must be reversed, and that Court directed to enter a decree for the plaintiff in accordance with the prayer of. his complaint; and it is so ordered.