The herald., 1893-01-20
A SUPREME COURT OPINION
The Case of Riley VS.. Nance
Finally Decided. v
Cases Which Were Acted Upon in the
Superior Courts. "l
Proceedings OF the Various Judges
-James Howard Sentenced
New Suits U hich Were
Filed.

Deputy CLERK Ashmore of the supreme
court yesterday, received the following
opinion: atr
William Riley, appellant, VS.. Roy
Nance, respondent This is an action
to quiet title. The case was tried on an
agreed statement of facts, as follows
In an action entitled Fl We. 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 II, 1888. On May 10.
1888, W and A conveyed said land by
deed to r, Dsce nber 10, 1888, W and
A appealed to the court, giving tho
undertaking for said appeal q nd stay Of
execution. In July. 1889, said judg-
ment was affirmed. September 16,
$50, said land WAS sold under execu-
ti5n Issued upon such judgment in at
tachment to PLAINTIFF grantois. July
10, 1883, II put mortgage on said land,
and respondent claims title to the land
as a purchs'er at foreclosure sale
hereunder in November, 1889.
The court below held that the attach
pent 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 sec.
81 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 oil of the Code of Civil Pro-
cedure, in referring to q Judgment lien,
savs: The lien continues for two years,
unless the enforcement OF the judgment
be stayed on appeal by the execution Of
sufficient undertaking, as provided in
this code, in which case the lien of the
judgment ceases Owing to the views
ertained upon another branch of the
case we do not find it ! ecessary to re.
view the decision in Bsgley VS.. Ward
(37 Cal, 12l), wherein the doctrine OF
the merger of an attachment lien into
that OF Judgment lien is fully discussed
and which decision is adverted to in
Porter VS., Pico (55 Cal. 174). 1t is suf.
ticient for the purpose Of this case to say
that no Judgment lien existed upon this
realty, and that consequently the at
tachment lien could not possibly have
been merged therein.
At the time the judgment was rem
dered in the action wherein the attach
ment had been Issued and levied, the
judgment debtor had no interest in the
realty whatever. He had conveyed all
his title to r. 70 be sure it was con.
veyed subject to the attachment lien,
but r had a complete and perfect title,
except as to this lien. The Code of
Civil Procedure. section 671, provides
that from the time the judgment is
dccketed it becomes lien upon all the
real property of tho Judgment debtor
not exem pt from execution i'll the coun-
ty, owned by him at the time, or which
he may afterward acquire, u1til the lien
ceases. ff-'gritr sa, nl-f -ia
II was said in People VS.. Irwin GA
Cal. 434): ut is not denied that Rigby
was Judgment creditor. but it 10
claimed that hie judgment never became
a lien upon the property, and that the
proceedings under it we're therefore in
effectual for any OF the purposes OF re-
demption. The reasons aee gned are
that when the judgment was recovered
the title to the property had passed
from the Judgment debtor and vested in
the relator, and that in the hands OF
the latter the property was not subject
to the lien of the judgment. nor to any
proceedings affecting the title the valid
ity of which depended upon such a lien.
Il is undoubtedly true that the statutory
lien of judgment upon the real estate
of the Judgment debtor con attach only
upon property in which said debtor
has vested legal interest. This was
admitted arguendo in the Gaze of Nc
MILAN vs. Richards 90 Cal 365) and we
have no doubt Of its correctness"
A eheriff's decd, executed in pursu-
ance of an execution sale under n judg-
ment in an attachment suit takes effect
from the date of the attachment, ii the
levy is such as 10 create a lien. (Porter
vs. Pico, 55 Cal. 17l) 1t follows that
appellants title is anterior to and must
prevail over the title obtained nuder the
foreclosure proceedings.
Let the judgment and order be re-
versed, with directions to the trial
court to enter judgment for the plaintiff
on the pleadings. GARoUrrE, J.
We concur.
PATERSON, J.
HAKKISON T.