Beaton v. Reid

Van Fleet, J. Execution, based upon a judgment recovered by the appellant, Reid, in the justice’s court of the city and county of San Francisco, against the respondent, Elizabeth Beaton, and which had been docketed in the superior court judgment docket of said city and county, was issued by the clerk of said city and county to the sheriff of San Mateo county, and by the latter levied upon the premises in dispute, situate in the latter county, on October 18, 1894, and notice of sale under said execution given.

Subsequent to said levy, but before the sale, on October 26, 1894, the judgment debtor declared a homestead on the premises in due and proper form, and subsequently thereto brought this action to enjoin the sale.

The sole question presented is whether the levy of the execution and the lien created thereby prevented the premises from being impressed with the character of a homestead to an extent to defeat such sale, it being conceded that the judgment itself did not constitute a lien thereon.

The instances and extent in which and to which a homestead is liable to be subjected to the demands of [486]creditors of the homestead claimant are clearly and explicitly provided in the Civil Code:

“Sec. 1240. The homestead is exempt from execution or forced sale, except as in this title provided.

“Sec. 1241. The homestead is subject to execution or forced sale in satisfaction of judgments obtained: 1. Before the declaration of homestead was filed for record, and which constitute liens upon the premises.”

These provisions would seem to exclude by their terms the right to enforce the judgment in question against the homestead, unless the levy of the execution had the effect, as contended by appellant, to constitute the judgment, which was not otherwise such, a lien upon the premises. But it had not such effect. The lien of the execution is not that of the judgment; the execution neither creates a judgment lien nor extends a judgment lien once created. (Bagley v. Ward, 37 Cal. 122; 99 Am. Dec. 256; Rogers v. Druffel, 46 Cal. 654; Eby v. Foster, 61 Cal. 282.)

There is hut one mode of constituting a justice’s judgment a lien upon the lands of the judgment debtor, and that is the filing of an abstract thereof in the office of the recorder of the county in which the land is situated. (Code Civ. Proc., sec. 900.)