Summary
In Riley v. Nance, 97 Cal. 203, [31 P. 1126, 32 P. 315], the court cited the Irwin case with approval and made quotations therefrom; Zenda Mining Co. v. Tiffin, 11 Cal.App. 62, [ 104 P. 10], refers to the Irwin case with approval.
Summary of this case from Belieu v. PowerOpinion
Department One
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
COUNSEL:
I. Hall, for Appellant.
E. C. Brown, for Respondent.
JUDGES: Garoutte, J. Paterson, J., and Harrison, J., concurred.
OPINION
GAROUTTE, Judge
This is an action to quiet title. The case was tried on an agreed statement of facts, as follows: In an action entitled H. v. W. and A ., commenced May 4, 1888, the land in question, being that of W. and A., was attached and held until judgment in the case, November 12, 1888. May 19, 1888, W. and A. conveyed said land by deed to R. December 10, 1888, W. and A. appealed to this court, giving the undertaking for said appeal and stay of execution. In July, 1889, said judgment was affirmed. September 16, 1889, said land was sold under execution, issued upon such judgment in attachment, to plaintiff's grantors. July 19, 1888, R. put a mortgage on said land, and respondent claims title to the land as a purchaser at a foreclosure sale thereunder in November, 1889.
The court below held that the attachment lien merged in the judgment lien, and by the giving of the undertaking on appeal to stay execution the attachment lien was released and lost, under section 671 of the Code of Civil Procedure, and that the sale of the land in question under execution upon the attachment judgment gave no title, and that the title of R. must prevail.
Section 671 of the Code of Civil Procedure, in referring to a judgment lien, says: "The lien continues for two years, unless the enforcement of the judgment be stayed on appeal by the execution of a sufficient undertaking, as provided in this code, in which case the lien of the judgment ceases." Owing to the views entertained upon another branch of the case, we do not find it necessary to review the decision in Bagley v. Ward , 37 Cal. 121, 99 Am. Dec. 256, wherein the doctrine of the merger of an attachment lien into that of a judgment lien is fully discussed, and which decision is adverted to in Porter v. Pico , 55 Cal. 174. It is sufficient for the purposes of this case to say that no judgment lien existed upon this realty, and that consequently the attachment lien could not possibly have been merged therein. At the time the judgment was rendered in the action wherein the attachment had been issued and levied, the judgment debtor had no interest in the realty whatever. He had conveyed all his title to R. To be sure, it was conveyed subject to the attachment lien, but R. had a complete and perfect title, except as to this lien. The Code of Civil Procedure, sec. 671, provides that from the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards acquire, until the lien ceases. It cannot be said that the judgment debtor owned this realty at the date of the docketing of the judgment. Upon the contrary, he had no interest in it whatever. He had sold it subject to the attachment lien, and had thus transferred the title to his vendee as fully as though he had sold it subject to a mortgage or mechanic's lien. The fact that an attachment lien was fastened upon the property at the date of sale in no way affected the vendor's ownership. It follows that when the judgment was docketed the title was in a stranger, and there was nothing whatever upon which to create a judgment lien other than the lien of the attachment, and that was wholly insufficient to serve any such purpose.
It was said in People v. Irwin , 14 Cal. 434: "It is not denied that Rigby was a judgment creditor, but it is claimed that his judgment never became a lien upon the property, and that the proceedings under it were therefore ineffectual for any of the purposes of a redemption. The reasons assigned are, that when the judgment was recovered, the title to the property had passed from the judgment debtor and vested in the relator, and that in the hands of the latter the property was not subject to the lien of the judgment, nor to any proceedings affecting the title, the validity of which depended upon such a lien. It is undoubtedly true that the statutory lien of a judgment upon the real estate of the judgment debtor can attach only upon property in which such debtor has a vested legal interest. This was admitted arguendo in the case of McMillan v. Richards , 9 Cal. 365, 70 Am. Dec. 655, and we have no doubt of its correctness."
A sheriff's deed, executed in pursuance of an execution sale under a judgment in an attachment suit, takes effect from the date of the attachment, if the levy is such as to create a lien. (Porter v. Pico , 55 Cal. 171.) It follows that appellant's title is anterior to and must prevail over the title obtained under the foreclosure proceedings.
Let the judgment and order be reversed, and the cause remanded, with directions to the trial court to enter a judgment for the plaintiff upon the findings.