Hoag v. Howard

Thornton, J.: In this cause, which was an action to recover possession of a parcel of land, the only question presented is, whether a party whose title is made out by a deed not recorded until after the lien of an attachment had been perfected, is superior to that of one who makes title by conveyance from an attachment creditor who has recovered judgment in the action, had execution issued, [565]has become the purchaser at the execution sale, and received the sheriff’s certificate and deed. The grantor in the unrecorded deed and the defendant in the attachment suit is the same person.

It is conceded that prior to the adoption of the Civil Code, the title of the former would prevail. (Plant v. Smythe, 45 Cal. 161.)

The section of the Civil Code referred to as changing the rule is § 1107, and is in these words:

“ Every grant of an estate in real property is conclusive against the grantor, also every one subsequently claiming under him, except a purchaser or incumbrancer, who in good faith, and for a valuable consideration, acquires a title or lien by an instrument that is first duly recorded.”

The lien here, as we have stated, is claimed under a writ of attachment, and it is contended that the writ of attachment is an instrument in the sense of the statute.

Now, what is the meaning of the word instrument, as used in the section referred to ? To ascertain this, the provisions of the Civil Code, which is one act of the Legislature, must be examined.

In examining the provisions of a statute in order to ascertain its meaning, every part of it must be looked to, and where a word or clause is found repeatedly used in it, it will be presumed to bear the same meaning throughout the statute, unless there is something to show that there is another meaning intended. (Pitte v. Shipley, 46 Cal. 160; see also Robbins v. O. R. R. Co. 32 id. 472; Green v. Weller, 32 Miss. 650.)

If we look into the provisions of the Code in which the word “ instrument ” is used, it will be invariably found to indicate some written paper or instrument signed and delivered by one person to another, transferring the title to or creating a lien on property, or giving a right to a debt or duty. In the title (IV of Part IV, Second Division) in which the section above quoted (1107) is found, this word is frequently employed. It is used in the following sections of this title : 1053, 1056, 1059, 1091, 1093, 1094, 1095, 1106, 1107, 1110, 1135, -1158, 1161, 1162, 1165, 1170, 1172, 1180, 1181, 1182, 1183, 1185, 1186, 1188, 1190, 1193, 1195, 1196, 1197, 1198, 1199, 1200,. 1201, 1202,