People ex rel. Bowman v. Hovious (1861) · DecisionDepot

People ex rel. Bowman v. Hovious

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1861Published

Before: Cope

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Holding. The court held that a judgment lien on real property is not destroyed by the subsequent organization of a new county containing that property, and that such a lien cannot be revived or subjected to a second lien under the same judgment.

Issues

Whether a judgment lien on real property survives the subsequent organization of a new county containing that property.
Whether a judgment lien, once attached, can be revived or subjected to a second lien under the same judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“this lien was not destroyed by the subsequent organization of the county of San Mateo, but continued until cut off by the limitation affixed by the statute.”

“The property could not be subjected a second time to a lien under the same judgment.”

Synopsis

A judgment obtained and docketed in the Superior Court of the city of San Francisco, became a lien upon the real property of the judgment debtor, not exempt from execution, within the county of San Francisco.

The Act of April, 1856, creating San Mateo county out of a portion of the territory of the county of San Francisco, did not destroy or affect judgment liens then existing; but such liens continued upon the land of the judgment debtor, not exempt from execution, until the expiration of the statutory period, without recording the judgment in the county of San Mateo where the lands lie. And recording the judgment in this latter county, after the lien was exhausted by the expiration of the two years from the time of its docketing in the Superior Court, will not revive the lien.

Cope, J. delivered the opinion of the Court Baldwin, J. concurring.

This is an application for a mandamus. The following are the [474]facts: On the sixth of July, 1855, Thomas A. Lynch recovered a judgment in the late Superior Court of the city of San Francisco, against Alvin Adams, Daniel H. Haskell, and Isaac C. Woods, for the sum of $10,143.06, which judgment was duly docketed in the office of the Clerk of that Court, as required by the statute. On the eighteenth of August, 1859, the relator recovered a judgment in the District Court for San Mateo county, against the same defendants, for the sum of $5,000, and certain lands situated in that county were levied upon and sold under an execution issued upon this judgment. The relator became the purchaser, and received a certificate of sale in the usual form. On the twenty-first of February, 1860, a copy of the first mentioned judgment, together with a transcript of the docket, was filed in the office of the Recorder of San Mateo county, and afterwards, and within the time limited for the redemption of the lands from the sale to the relator, the holder of that judgment paid to the defendant the amount necessary for that purpose. The question is as to the validity of this redemption, and the only point to be determined is, whether a lien was acquired upon the lands in question by the filing of the transcript in the county of San Mateo.

The act creating San Mateo county was passed in April, 1856, and prior to that time the territory embraced within the limits of that county constituted a part of the county of San Francisco. The judgment under which a redemption is claimed to have been made was docketed in July, 1855, and from that time became a lien upon all the real estate of the judgment debtors, not exempt from execution, situated in San Francisco county. We cannot assent to the view that the provisions of section two hundred and four of the Practice Act were not applicable in their full extent to judgments obtained in the Superior Court of the city of San Francisco. The proposition is, that under the provisions of that section the lien of such judgments did not extend beyond the corporate limits of the city, but we cannot adopt a construction which is not justified by the letter or spirit of these provisions. The power of the Legislature over the subject cannot, of course, be questioned. It is clear, therefore, that a lien, such as we have stated, attached upon the docketing of the judgment in 1855, and our opinion is, that [475]

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this lien was not destroyed by the subsequent organization of the county of San Mateo, but continued until cut off by the limitation affixed by the statute. No provision was made in the act creating San Mateo county affecting its existence or continuance, and we do not think that the mere fact of the organization of that county was sufficient to destroy it. It existed by positive provision of law, and could not be taken away by implication and inference. We think, however, that there was no intention to interfere with the operation of any lien which had previously attached. The effect of such interference would have been to change entirely the situation and condition of creditors in that respect, and we cannot suppose that any such change was contemplated in the passage of the act. The case of Davidson v. Root (11 Ohio, 98) is directly in point: “Judgment liens,” say the Court, “ are of a purely legal character. They do not exist at common law. Their creation, extension, and continuance depend entirely upon statutory provision. Their operation, as a part of the remedy to enforce the collection of a debt, is governed by the terms of the statute. That the lien may attach it is certain that, by the statute, the land must be in the county where the judgment is rendered, at the time of its rendition; or if in another county, there must be an actual levy. And it is, therefore, supposed that where a new county is organized, with no saving clause in the act, and lands subject to a judgment lien in the old county fall within the new organization, the lien ceases to exist. We do not think so. The lien being given by express provision, although it is admitted, as a part of the remedy, to be within the control of the Legislature, must, nevertheless, remain until lost by act of the judgment creditor, or taken away by subsequent legislation. There is nothing, express or implied, in the Act,of 1838 organizing Erie county, inconsistent with the enforcement of this lien. It may be said that after the division of the counties the records of Erie furnish no notice of this incumbrance to the purchaser. This is true; nor would they furnish such notice had there been ever so extensive a saving clause in the act. There is no difference, in our opinion, in principle between this judgment lien and a lien created by mortgage, recorded in Huron county before the division. The records of Erie would have given no notice of

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