Eby v. Foster

McKee, J.: Defendant Foster, as Sheriff of Tehama county, by an execution which had been issued on a money judgment in favor of his co-defendant Campbell against Jackson Eby, one of the plaintiffs in this case, levied upon and advertised for sale the southwest quarter, and the west half of the southeast quarter of Section 8, Township 26 north, range 5 west, Mount Diablo Meridian, as the property of the judgment debtor.

Before the day appointed for the sale the plaintiffs in this case brought their action to enjoin the sale, upon the ground that the property constituted their homestead, and was exempted from execution, levy, and sale.

The record shows that the plaintiff, Jackson Eby, had acquired title to the property on November 3,1880, from one Sambo, in exchange for certain parcels of land in the town of Bed Bluff, which the plaintiffs, before the exchange of property, had occupied as their homestead; and their intention in making the exchange was to secure a homestead in the country instead of in town. The exchange and the declaration of homestead constituted a single transaction. Simultaneously with drafting the deeds of exchange a declaration of homestead, legal in form, upon the property in dispute was drawn, and the declaration with the two deeds of exchange were, at the same time, in regular succession executed and acknowledged and filed for record—the deed to Bambo for the town lots being recorded first, at four minutes past three o’clock P. M.; the deed to Eby, for the land in the country, at six minutes past three o’clock P. M.; and the declaration of homestead, upon the land in the country, at eight minutes past three o’clock P. M., of November 3,1880. But the judgment against Eby, on which execution had run to the Sheriff, had been given and entered on November 9,1878; and on the day of the recording of the deeds of exchange and the declaration of homestead by Eby and wife, this judgment existed unsatisfied of record; and the question arises whether the judgment was docketed, so as to create a lien upon the [286]property, when the plaintiff acquired title to it from Rambo, before the declaration of homestead upon it was recorded ?

Between the delivery of the deed to Eby and the recording of the declaration of homestead there was an interval of several minutes. That time was sufficient for the existing lien of a judgment to attach to the property. (Marriner v. Smith, 27 Cal. 650; Hibberd v. Smith, 50 id. 511.) But no judgment lien is created upon real property belonging to a judgment debtor until the judgment be docketed. (§ 671, C. C. P.) Docketing a judgment consists of an entry in the docket in the Clerk’s office of a brief abstract of the judgment. The docket in which this entry must be made is “ a book with each page divided into eight columns and headed as follows: Judgment debtors; judgment creditors; judgment — time of entry; where entered in judgment book; appeals — when taken; judgment of appellate Court; satisfaction of judgment; when entered,” etc. (C. C. P., 672); and the law has made it the duty of the Clerk to enter in this docket the title of each cause, with the date of its commencement, and a memorandum of every subsequent proceeding therein, with the date thereof. (Pol. C., Suhd. 3, § 4204.)