Isaac v. Swift

Burnett, J., delivered the opinion of the Court Terry, C. J., and Field, J., concurring.

This controversy has relation to a lot in Sacramento city, both parties claiming title under Arents and Chedic. Reynolds & Co. obtained judgment against Arents and Chedic on the 11th of October, 1853, upon which execution was issued and levied 4th of October, 1855, and the property sold by the sheriff on the 20th of October, 1855, to the vendor of plaintiff. On the 8th of June, 1854, the defendant, Swift, obtained judgment against Arents and Chedic, upon which execution was issued and levied in February, 1856, and the property sold to defendant by the sheriff in March, 1856.

It will be seen that the execution upon the judgment of Reynolds & Co. v. Arents and Chedic, was issued and levied seven days before the expiration of two years from the date of the judgment, and that the sale was made some nine days afterwards. The question is, whether the issue and levy of this execution, before the lien of the judgment expired, had the effect to prolong the lien beyond the time limited by section two hundred and four of the Code. That section provides, “ that from the [80]time the judgment is docketed, it shall become 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 said lien expires;” and that “ the lien shall continue for two years unless the judgment be previously satisfied.”

The New York Statute of 1813, concerning Judgments and Executions, provided that “ all judgments hereafter to be rendered, shall cease to be a lien or incumbrance upon any real estate, as against bona fide purchasers, or subsequent incumbrancers by mortgage, judgment, or otherwise, from and after ten years from the time the same shall be docketed.” (1 R. L., 500.)

In the case of Roe v. Swart, (5 Cowen, 294,) the Court said : “ The words leave no room for doubtful construction.” So, in the case of Little v. Harvey, (9 Wend., 158,) it was said, by Sunderland, J., in delivering the opinion of the Court, that “the language of the act is too clear to admit of any question as to its construction.” It was, accordingly, held in both these cases, that the issue and levy of the execution before the expiration of the ten years, would not extend the lien beyond the time mentioned in the statute, “unless the plaintiff has been restrained from issuing execution by injunction out of Chancery.” This is the settled doctrine in that State. (18 Wend., 621; 1 Cowen, 481.)