Culver v. Rogers (1865) · DecisionDepot

Culver v. Rogers

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

California Supreme Court Oct 15, 1865Published

Before: Currey

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Holding. In a mortgage foreclosure action, a judgment for a deficiency does not become a lien on the debtor's other real property until the mortgaged premises are exhausted and the deficiency is docketed, meaning a homestead filed before that docketing is exempt from execution.

Issues

Whether a judgment in a foreclosure action becomes a lien on a debtor's non-mortgaged real property before the mortgaged premises are sold and a deficiency is docketed.
Whether a homestead declaration filed after the initial foreclosure decree but before the deficiency is docketed protects the property from execution.

Disposition. reversed

Quotations verified verbatim against the opinion

“Until the judgment was docketed for the balance due the plaintiff, the premises in controversy did not become encumbered by the judgment, and before then it became, the plaintiff’s homestead”

Synopsis

Appeal from the District Court, Eleventh Judicial District, El Dorado County.

The personal judgment in case of Hunt v. Culver was as follows: “ Wherefore, by reason of the law. and the finding aforesaid, it is ordered, adjudged, and decreed, that B. T. Hunt, plaintiff, have and recover of and from E. P. Culver, defendant, eight hundred and nine dollars and twenty-three cents debt, with interest thereon at the rate of two and a half per cent per month from the date hereof until paid; together with sixteen dollars and thirty-five cents costs of suit.” Then followed the usual decree for the sale of the mortgaged premises.

The defendant recovered judgment in the Court below, and plaintiffs appealed.

The other facts are stated in the opinion of the Court.

By the Court,

Currey, J. - In January, 1863, the defendant Hunt, as plaintiff, commenced an action in the District Court in El Dorado County against the plaintiff E. P. Culver, as defendant, to recover the amount of two promissory notes, and to foreclose a mortgage [523]on certain real property, executed by him to secure the payment of the amount due on the notes. On the 20th of May foil6wing the Court “ ordered, adjudged and. decreed that B. T. Hunt, plaintiff, have and recover of and from E. P. Culver, defendant, eight hundred and nine dollars and twenty-three cents debt, with interest thereon at the rate of two and a half per cent per month from the date hereof until paid, together with sixteen dollars and twenty-five cents costs of suit;” and" immediately following this, the Court decreed that the mortgaged premises be sold by the Sheriff of the county in the same manner as the sales of real property are made under execution, and that the proceeds thereof be applied to the payment of said judgment, and that if the proceeds be insufficient for the purpose, then an execution be issued for the balance remaining due and unpaid. On the day after this judgment was entered, the Clerk of the Court docketed the same in the Judgment Docket Book. The mortgaged premises were sold under the decree on the 20th of July,.but not for sufficient to satisfy the am'ount due. The Sheriff made his return, from which the balance remaining due appeared, and this balance was duly docketed in the Judgment Docket Book on the 18th of August, 1863. On the 9th of July of the same year- the plaintiff, Elsie Culver, caused to be filed and recorded in the Recorder’s office of El Dorado County a declaration of homestead on certain real property belonging to herself and husband as common property, on which she and her husband and their family resided and continued'to reside to the time of the trial of this action. The property thus selected by Mrs. Culver as a homestead belonged to herself and husband at the time the judgment and decree was first docketed, and was not a part of the mortgaged premises. When the same was so selected as a homestead, and when this cause was tried, it was not of the value of five thousand dollars. In January, 1865, Hunt caused execution to be issued to collect the balance remaining due him on his judgment, and the same was placed in the hands of the defendant, Rogers, Sheriff of said county, who levied the execution upon the property selected by Mrs. [524]

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The two hundred and' forty-sixth section of the Practice Act as amended in 1861 (Laws 1861, p. 306) contains an additional provision which reads as follows : “If it shall appear from the Sheriff’s return that there is a deficiency of such proceeds, and a balance still due to the plaintiff, the judgment shall then be. docketed for such balance against the defendant or defendants personally liable for the debt, and shall from the time of such docketing be a lien upon the real estate of the judgment debtor, and an execution may thereupon be issued by the Clerk of the Court, in like manner and form as upon other judgments, to collect such balance or deficiency from the property of the judgment debtor.” If it be assumed that the recovery obtained on the 20th of May, 1863, was a judgment in personam, followed by a decree of foreclosure' and sale, the fact that the debt, to recover which the action was brought, was secured by mortgage, and the further fact that the action was to make the money due by a foreclosure and sale of the mortgaged premises, operated to limit the plaintiff to his remedy to the premises mortgaged, until the same should be exhausted. When exhausted by a sale thereof under the decree, and a balance is ascertained in the mode prescribed to be still due to the plaintiff, the judgment shall be docketed for such balance, and shall from the time of such docketing be a lien upon the real estate of the judgment debtor, and an execution may thereupon be issued in like manner and form as upon other judgments. If this was the only statutory provision relating to the creation of a lien by judgment, we apprehend no question would be made as to the point of time determining its inception. But the two hundred and fourth section of the Act, which has reference to judgments in personam generally, provides that from the time the judgment is docketed it 'shall become a lien on all the real property of the judgment debtor, etc., and that the lien shall [526]continue for two years, unless the judgment he previously satisfied. The section here referred to does not provide at what time the judgment must be docketed. It may be docketed immediately after the judgment roll is filed, or at any time afterwards while the judgment subsists, for aught that appears in the statute. From the docketing, the judgment encumbers the debtor’s real property, and may continue a lien upon it for two years. But with respect to a judgment in personam coupled with a decree foreclosing a mortgage, and directing a sale of the mortgaged premises, the judgment is to be docketed for the balance which may remain due after the mortgaged property is exhausted, and from that event, that is, the docketing, the judgment shall be a lien on the debtor’s real property, and may thereafter subsist as a lien for two years. If the theory of the respondents was accepted, the entire judgment might exist as a lien for two years from the time it was first docketed, and then, if the mortgaged premises were -sold under the decree without satisfying the amount due, the judgment to the extent of the balance remaining due might be docketed again, and from that time the judgment for the balance would be a lien on the debtor’s real estate, which would continue for two years, if not sooner paid. Besides this consequence, we should in substance determine the amendment of section two hundred and forty-six to be without purpose or effect. The-statute as amended seems to have been designed to limit the remedy of the mortgage creditor to his security, in cases when a decree for sale of mortgaged premises is had, until that was exhausted, and then to give him a lien on all his debtor’s real property subject to execution for the balance remaining due, from the time the same should be duly ascertained and the judgment docketed for that balance.

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