Porter v. Pico

California Supreme Court Jul 1, 1880 No. No. 6,876Published

Before: McKee

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Holding. A sheriff's deed issued following an execution sale in an attachment suit relates back to the date of the attachment levy, granting the purchaser priority over subsequent liens. Consequently, a property owner may enjoin a threatened execution sale by a junior lienholder that would otherwise cast a cloud upon their title.

Issues

Whether a sheriff's deed in an attachment suit takes effect from the date of the attachment levy.
Whether a prior attachment lien is merged into and perpetuated by a subsequent judgment.
Whether a property owner may enjoin a threatened execution sale by a junior lienholder to prevent a cloud on title.

Disposition. affirmed

Quotations verified verbatim against the opinion

“a sheriff’s deed, executed in pursuance of an execution sale under a judgment rendered in an attachment suit, takes effect from the levy of the attachment, if the levy is such as to create a lien.”

“The attachment lien still exists so as to confer a priority in the lien of the judgment.”

Synopsis

Sheriff's Deed — Execution Sale—Attachment — Relation. — A sheriff’s deed, executed in pursuance of an execution sale, under a judgment rendered in an attachment suit, takes effect from the levy of the attachment. The attachment lien, though merged in the judgment, still exists, so as to confer a priority in the lien of the judgment, and this result is attained, in an indirect way, by applying the doctrine of relation to the series of acts necessary to be done to transfer title to the property attached.

Attachment — Return—Presumption.— A return upon an attachment, (or other mesne process) that the officer duly levied the same, is defective in not stating the acts done by the officer in making the service; but such a return is prima facie sufficient to show a due execution, though the presumption may be controverted.

Id.—Id.—Id.—Conflict of Evidence—Findings.—In such a case, where the officer testified that it was his custom to levy the attachment by first posting the attachment, with the notice of levy, upon the land, and afterward filing the same in the Recorder’s office, (being the reverse of the order prescribed by the statute): Held, there was a conflict of evidence, and the finding of the Court, that the attachment was duly levied, was conclusive.

Id.—Irregularity.—The lien of an attachment is not affected by any irregularities in the attachment: but such irregularities are waived by the defendant when he appears, and answers, without taking advantage of them by motion or otherwise.

Injunction-Cloud upon Title—Execution Sale.—Where a sheriff’s sale, though ineffectual to pass title to a purchaser, would yet be sufficient to cast a cloud upon the plaintiff’s title, a Court of Equity will enjoin the sale.

Id.— Id.— Id.— Execution — Attachment — Sheriff’s Deed -Ex-Sheriff — Relation.—A sheriff’s deed, made upon an execution sale under a judgment in an attachment suit, conveyed to the plaintiff all the right, title, and interest of the judgment debtor, which he had at the date of the docketing of the judgment, or at anytime thereafter. The defendant, who had obtained judgment in an attachment suit, wherein the attachment was levied upon the same land after the attachment, but before the judgment, in the former suit, caused a special execution to be issued to the ex-Sheriff, (who had levied his attachment) requiring him to sell the interest which the judgment debtor had in the land at the date of the levy of the attachment, field, that the plaintiff’s deed took effect by relation from the date of the attachment, and conveyed to him the interest which the judgment debtor then had, and that the sale under the defendant’s execution would have cast a cloud upon the plaintiff’s title, and was therefore rightly enjoined.

McKee, J.: The action is brought to enjoin the defendants from selling the land described in the complaint, under an execution issued upon an order of the late District Court of Los Angeles County, whereby the defendant Alexander, Sheriff of the County of Los Angeles, was commanded to proceed and sell all the title and interest which one E. F. de Celis had in the land on the 2nd day of January, 1877, and which had been on that day levied on by a writ of attachment issued in an action brought by the defendant Pico against the said de Celis. The plaintiff is in possession of the land, claiming to be the owner of it by judgment, execution sale, and sheriff’s deed, in an attachment suit, commenced on the 24th day of December, 1876, by one W. It. Rowland against the same judgment debtors, and also by a [171]sheriff’s deed made to him as a rcdcmptioncr of the property from a sale made to one A. B. Chapman against the same judgment debtor. In the Rowland case, an attachment was levied on the 26th day of December, 1876; judgment was rendered on the 21st of April, 1877, and was docketed on the same day. The property was sold on the 25th of June, 1877, by an execution issued on this judgment, which commanded the Sheriff of the county to satisfy the judgment out of the real property belonging to the defendant on the day when the judgment was docketed, or at any time afterward. The certificate of sale, and sheriff’s deed, transferred to the plaintiff, as assignee of the purchaser at sheriff’s sale, “ all the right, title, interest, and claim, which the said judgment debtor, E. F. dc Celis, had on the 21st day of April, 1877, or at any time afterward, or now has, in and to the lands ” described therein.

The case of Chapman v. Celis was a judgment rendered by a justice of the peace on the 81st of October, 1876. A transcript of the judgment was filed November 1st, 1876, and, by an execution issued thereon, the land in dispute was sold on the 27th of November, 1877. From the purchaser at the sale, the plaintiff, as the successor in interest of Celis, redeemed the land, and on the 8th day of June, 1878, the Sheriff executed and delivered to him, as rodeinptioner, a deed of all the right, title, and interest, which the “judgment debtor had in the land on the 1st day of November, 1876, or at any time thereafter.” Under these conveyances, plaintiff was let into possession of the land, and was in possession when this action was brought.

It is contended that the deed made to the plaintiff as a redemptioner was void, and transferred no title; that the proceedings by attachment in the Rowland case were irregular and defective, and created no lien; that the sheriff’s deed conveyed to the plaintiff only the estate which the judgment debtor had in the land on the 21st of April, 1877, and that that was subject to the prior attachment lien of the defendant created by the levy of his attachment on the 2nd day of January, 1877.

Porter v. Pico

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