Bank of America National Trust & Savings Ass'n v. Hill

CURTIS, J. On August 29,1931, defendant F. A. Landon commenced an action in the Superior Court of the County of Shasta against defendants Theo. K. Hill and George Exley. The complaint in said action set forth three causes of action. The first cause of action was for damages for eviction from certain real property. The second cause of action was for conversion of personal property to plaintiff's damage in the sum of $528. The third cause of action was to recover an indebtedness of $528 for goods, wares and merchandise sold and delivered. It is admitted that the second and third causes of action were based upon the same transaction. In that action a writ of attachment was regularly issued and placed in the hands of the sheriff of said county, who duly levied the same upon the real property here involved. On December 30, 1931, and while said action was pending, Hill executed and delivered to the predecessor of plaintiff a trust deed on said property to secure the payment of $1500, which trust deed was duly recorded on January 7, 1932. On April 29, 1932, judgment in said action was rendered in favor of Landon and against Hill for $4,500 damages in the first cause of action, and “that plaintiff recover damages from defendants, Theo. [498]K. Hill and George Exley, in the sum of $174.00”. Execution was taken out and levied upon said real property and the same was sold to defendants, Jesse W. Carter and F. A. Landon, and on November 1, 1934, the purchasers received a sheriff’s deed to said real property. On August 13, 1934, this action was brought to foreclose said trust deed and for a receiver of the property in controversy. Jesse W. Carter, having acquired the interest of defendant Landon in said real property, filed an answer and also a cross-complaint praying that his title to said real property be quieted as to the claims of the plaintiff, the Bank of America National Trust and Savings Association. Upon these issues the case was tried by the court, and resulted in a judgment in favor of the defendant and cross-complainant quieting his title to the real property involved. The plaintiff, the Bank of America National Trust and Savings Association, has appealed.

It is the contention of the appellant that the judgment rendered in the action of Landon v. Hill was for the recovery of damages only in an action in tort, and that the attachment theretofore issued and levied upon the real property was extinguished or discharged by said judgment.

It is conceded that the attachment was properly issued under the third cause of action of the complaint in the action of Landon v. Hill and that it was legally levied upon said real property, but it is contended that the judgment for the recovery of damages for the conversion of the personal property was rendered upon the second cause of action and not upon the third cause of action, and therefore, that said judgment did not continue in force the attachment lien, but that the attachment was extinguished or discharged by said judgment.