Everett v. Hayes

FINCH, P. J.

The plaintiff brought this action December 24, 1924, to quiet her title to several parcels of land. The defendants alleged that in an action prosecuted by them against plaintiff’s predecessor in interest, prior to the acquisition of title by the plaintiff, they had caused a writ of attachment to be duly levied on said lands and that such

[32]

action was still pending and undetermined. They prayed “that plaintiff may take nothing by this action; that further proceedings herein may be stayed and continued until such time as the rights of the parties in said cause . . . may .be determined and adjudicated”; and for other relief.

The court found, in substance, that the defendants commenced an action against Mrs. L. J. H. Hastings September 28, 1923, to recover the sum of eleven thousand dollars alleged to be due them on contract; that in that action a •writ of attachment was duly levied on part of the land described in the complaint herein which at that time belonged to and stood of record in the name of Mrs. Hastings; that the attachment has not been released or discharged and the action in which it was issued “has not been dismissed or terminated, but still remains pending and undetermined”; that “subsequent to the levy of said writ of attachment the said Mrs. L. J. H. Hastings conveyed to plaintiff all of her right, title and interest in and to all of said property owned by her and upon which said writ of attachment had theretofore been levied; that subsequent to the date of said transfer, ... on the 27th day of April, 1924, the said Mrs. L. J. H. Hastings died intestate, and that no proceedings have been taken by any person to administer upon her estate.”

As conclusions of law the court found that “the lien of the attachment . . . ceased to exist upon the death of the said Mrs. L. J. H. Hastings,” and judgment was entered quieting the plaintiff’s title against the claims of the defendants. The defendants have appealed from the judgment on the judgment-roll alone.

It was held in

Myers

v.

Mott,

29 Cal. 359 [89 Am. Dec. 49], three of the justices joining in the decision and two dissenting, that if the defendant die after the levy of an attachment and before judgment in the action, his death destroys the lien of the attachment, and several later decisions are to the same effect. These decisions are not based upon any statute providing that the death of the defendant shall discharge the attachment but upon the statutory provisions that, when a judgment is recovered against an executor or administrator, “no execution must issue upon such judgment, nor shall it create any lien upon the property of the estate, or give to the judgmezit creditor any priority of