Riley v. Nance

California Supreme Court Jan 17, 1893 No. No. 19093Published

Before: Beatty, Garoutte

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Holding. The court held that an attachment lien is not extinguished by the filing of a stay bond on appeal, and that a sheriff's deed resulting from an attachment sale takes effect from the date of the attachment, thereby prevailing over subsequent foreclosure titles.

Issues

Whether an attachment lien merges into a judgment lien such that it is extinguished by the filing of a stay bond on appeal.
Whether a judgment debtor's conveyance of land after an attachment but before judgment affects the priority of the attachment lien.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

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

“It follows that appellant’s title is anterior to and must prevail over the title obtained under the foreclosure proceedings.”

Synopsis

Attachment — Sale of Land by Attachment Debtor after Levy — Merger of Lien — Bond for Stay of Execution.—Where land is attached and held under the attachment until judgment in the case, but after the levy of the attachment, and prior to the judgment, the attachment debtor conveys the land to a third party, the attachment lien continues in force, and there is no judgment lien upon the property into which the attachment lien can merge, nor is the attachment lien released or discharged by an undertaking upon appeal to stay execution upon the judgment.

Id.—Sale of Land under Attachment—Priority over Subsequent Mortgage by Grantee. — In such case, a sale of the land under execution upon the judgment in the attachment suit vests title in the execution purchaser, which will prevail over title derived by a purchaser at a foreclosure sale under a mortgage given by the grantee of the attachment debtor.

Id.—Relation — Sheriff’s Deed of Attached Property.—A sheriff’s deed, executed in pursuance of an execution sale under a judgment in an attachment suit, takes effect from the date of the attachment, if the levy was such as to create a lien.

Garoutte, J. This is an action to quiet title. The case was tried on an agreed statement of facts, as follows: In an action entitled H. v. W. and A., commenced May 4, 1888, the land in question, being that of W. and A., was attached and held until judgment in the case, November 12, 1888. May 19, 1888, W. and A. conveyed said land by deed to R. December 10, 1888, W. and A. appealed to this -court, giving the undertaking for said appeal and stay of execution. In July, 1889, said judgment was affirmed. September 16, 1889, said land was sold under execution, issued upon such judgment in attachment, to plaintiff’s grantors. July 19, 1888, R. [204]put a mortgage on said land, and respondent claims title to the land as a purchaser at a foreclosure sale thereunder in November, 1889.

The court below held that the attachment lien merged in the judgment lien, and by the giving of the undertaking on appeal to stay execution the attachment lien was released and lost, under section 671 of the Code of Civil Procedure, and that the sale of the land in question under execution upon the attachment judgment gave no title, and that the title of R. must prevail.

Section 671 of the Code of Civil Procedure, in referring to a judgment lien, says: “ The lien continues for two years, unless the enforcement of the judgment be stayed on appeal by the execution of a sufficient undertaking, as provided in this code, in which case the lien of the judgment ceases.” Owing to the views entertained upon another branch of the case, we do not find it necessary to review the decision in Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256, wherein the doctrine of the merger of an attachment lien into that of a judgment lien is fully discussed, and which decision is adverted to in Porter v. Pico, 55 Cal. 174. It is sufficient for the purposes of this case to say that no judgment lien existed upon this realty, and that consequently the attachment lien could not possibly have been merged therein. At the time the judgment was rendered in the action wherein the attachment had been issued and levied, the judgment debtor had no interest in the realty whatever. He had conveyed all his title to R. To be sure, it was conveyed subject to the attachment lien, but R. had a complete and perfect title, except as to this lien. The Code of Civil Procedure, sec. 671, provides that from the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor not exempt from execution in the county, owned by him at the time, or which he may afterwards acquire; until the lien ceases. It cannot be said that the judgment debtor owned this realty at the date of the docketing of the juugment. Upon the contrary, he had no interest

Riley v. Nance

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