Morton v. Adams

PRINGLE, C. Suit to quiet title. Plaintiff is owner of the land. Defendant, London and Lancashire Insurance Company, claims a lien by judgment upon it. The following are the facts; The said defendant recovered a judgment against Emeline Wallace on March 13, 1896. She was then the owner of the land; and the judgment was duly docketed, and became a lien upon it. Emeline Wallace conveyed the land to plaintiff, subject to the lien of the judgment, and died on May 36, 1896. Administration was taken out, and the judgment was presented as a claim against her estate, and the claim allowed on September 34, 1896, The defendant in its answer sets up the lien of the judgment, and in a cross-complaint prays a foreclosure of the lien. The court finds that the lien is a valid and existing lien upon the [230]property, but grants no other relief to the defendant. Thus, no question of procedure is involved, only the existence of the lien. The plaintiff appeals, and contends: 1. That the judgment ceased to be a lien on the death of Emeline Wallace, the judgment debtor; 2. That the presentation of the claim against her estate destroyed the hen, if any existed.

1. Is the lien released by the death of the judgment debtor? The burden is on the appellant to overcome the express provision of the Code of Civil Procedure, section 671: “The lien continues for five 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 and any lien by virtue of an attachment that has been issued and levied in the action ceases.” But other sections of the code confirm rather than negative the continuance of the lien after the death of the debtor. Section 669 of the Code of Civil Procedure, in making provision for the entry of a judgment, says: “If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may, nevertheless, render judgment thereon. Such judgment is not a lien upon the real property of the deceased party, but is payable in the course of administration on his estate.” And in the title devoted to estates of deceased persons the same provision is re-enacted. (Code Civ. Proc., sec. 1506.) It is impossible to resist the effect of this express provision as implying that the judgment in other cases is a lien. If every judgment ceased to be a lien upon the death of a debtor, why make special provision that this judgment, rendered upon a decision made before the death, should not be a lien?

There is also an apparent recognition of the continuing lien of judgments in section 1643 of the Code of Civil Procedure. In that section, in making provision for the payment of debts, there is given to “judgments rendered against the decedent in his lifetime” the same preference against the general assets which is given to mortgages against the particular property covered by the lien of the mortgage. The payment of judgments “in the order of their dates” is the enforcement of their liens. And, what is more persuasive still, to the same end is the following provision of section 1505: “A judgment creditor, having a