during the second year of his lien, the first creditor could not have redeemed, because he did not hold a subsequent judgment lien; but if the first creditor had purchased at that sale, and a third judgment creditor had come to redeem, he would not have been required to pay the amount of the first judgment, because it did not then constitute a lien; but he would have to satisfy the execution issued upon it, if the levy did, in truth, amount to a lien. "Under our statutes the period of the docket lien is less than that during which an execution may issue, and the same is the case in New York, as well as in many other States. According to the provisions of Section 214 of the Practice Act in force up to 1861, an execution might issue, as of course, within five years from the entry of the judgment; and after that time, upon leave of the Court, upon showing that the judgment, or some portion of it, remained unsatisfied and due. The shorter period of the judgment lien was adopted for the purpose of leaving real estate unincumbered, as far as possible, consistently with the just demands of creditors for adequate security. The brief time of the lien of a mortgage-four years-also indicates the same policy of the law. Not only would this purpose be defeated, if the creditor could, during the judgment lien, acquire a new lien, not merely co-extensive with that of the judgment, but even extending to a time after a recovery upon the judgment itself was barred by the Statute of Limitations; and it would seem that the Courts were trifling, in holding that the levy and proceedings for the sale did not extend the docket lien, an operation that would be useless in the presence of a lien that might continue longer than was possible for the docket lien. If the defendant conveys his real estate, subject to the judgment lien, and an execution is thereafter issued during the period of that lien, such real estate may be levied on and sold under the execution, and if the levy produces a lien, it results that, by operation of law, a lien may be acquired to secure the satisfaction of the judgment upon property which the judgment debtor does not then own. No one would contend for such a principle. If there was no lien when the defendant sold the property, none could be produced by a levy; but if there was a judgment lien, and the property conveyed to the third person is levied upon and sold under execution, evidently the sale must be the enforcement of the judgment lien, as that was the only existing lien. "Where there are several executions in the hands of Docket, how kept, and what to contain. Docket to be open for inspection without charge. the officer at the same time, under which the lands are sold, it is held that the money must be applied first to the satisfaction of the oldest existing judgment lien.Roe vs. Swart, 5 Cow., p. 294; Barker vs. Gates, 1 How. Pr., p. 77; Jackson vs. Robert, 11 Wend., p. 422. It was held in Roe vs. Swart, that, although the execution upon the first judgment was issued within ten years from the docketing, yet, as the sale was not made within the ten years, the money must be applied to the satisfaction of the second judgment. And where an execution was sent to another county, and was received by the Sheriff before the judgment was docketed in that county, the execution took priority from the date of the docketing.-Stoutenberg vs. Vandenburgh, 7 How. Pr., p. 229." The docketing creates and preserves a lien for two years; but without docketing execution may issue. Hastings vs. Cunningham, 39 Cal., p. 137. 672. (§ 205.) The docket mentioned in the last section is a book which the Clerk keeps in his office, with each page divided into eight columns, and headed as follows: Judgment debtors; judgment creditors; judgment-time of entry; where entered in judgment book; appeals-when taken; judgment of appellate Court; satisfaction of judgment; when entered. If judgment be for the recovery of money or damages, the amount must be stated in the docket under the head of judgment; if the judgment be for any other relief, a memorandum of the general character of the relief granted must be stated. The names of the defendants must be entered in alphabetical order. NOTE.-The docket is constructive notice of the lien to strangers to the judgment.-Page vs. Rogers, 31 Cal., p. 293; Hastings vs. Cunningham, 39 Cal., p. 140. 673. (§ 206.) The docket kept by the Clerk is open at all times, during office hours, for the inspec tion of the public, without charge. The Clerk must arrange the several dockets kept by him in such a manner as to facilitate their inspection. to be filed in any county, and judgment a lien 674. (§ 207.) A transcript of the original docket, Transcript certified by the Clerk, may be filed with the Recorder of any other county, and from the time of the filing the judgment becomes a lien upon all the real prop- there. erty of the judgment debtor, not exempt from execution, in such county, owned by him at the time, or which he may afterwards, and before the lien expires, acquire. The lien continues for two years, unless the judgment be previously satisfied. NOTE.-Upon filing the transcript with a County Recorder of another county, the judgment becomes a lien upon the debtor's real property in that county for two years from the date of the filing, notwithstanding a lien by virtue of the same judgment has previously existed and expired by lapse of time in another county. Donner vs. Palmer, 23 Cal., p. 40. Filing the transcript with the Recorder of any other county makes it a lien upon the real estate in that county, but it does not make it a judgment of the District Court for that county.-People vs. Doe, 31 Cal., p. 220. But the mere contingent provision in a decree of foreclosure, for execution in case of deficiency, etc., does not amount to a personal judgment, and to such provision no effect can be given as a lien until the amount of the deficiency has been ascertained and fixed. The lien does not commence to run until the deficiency is ascertained, and an execution be issued therefor.-Chapin vs. Broder, 16 Cal., p. 420; see, also, notes to Secs. 670 and 671, ante. 675. (§ 208.) Satisfaction of a judgment may be entered in the Clerk's docket upon an execution returned satisfied, or upon an acknowledgment of satisfaction filed with the Clerk, made in the manner of an acknowledgment of a conveyance of real property, by the judgment creditor; or by the attorney, unless a revocation of his authority is filed. Whenever a judgment is satisfied in fact, otherwise than upon an execution, the party or attorney must give such acknowledgment, and, upon motion, the Court may compel it, or may order the entry of satisfaction to be made without it. Satisfac- tion of a Amended 1878-4. NOTE. If the execution is levied on sufficient property to satisfy it, the levy is a satisfaction of the judgment.-People vs. Chisholm, 8 Cal., p. 30; Mulford vs. Estudillo, 23 Cal., p. 94. Tender or offer to perform does not satisfy judgment.-Reddington vs. Chase, 34 Cal., p. 666. In Deland vs. Hiett, 27 Cal., p. 611, it was held that payment of part of ខ money judgment, under an agreement that it should operate as satisfaction in full, will not discharge the judgment; but the rule of this case was changed by legislative action.-See Stats. 1867-8, p. 31. See, also, Civil Code of California, Sec. 1524. Before action commenced, plaintiff's agreed with their attorneys that if the latter brought the action and recovered they should have one third of the judgment and costs as compensation. After judgment, and execution issued, the plaintiffs compromised with the defendant for less than the amount of the judgment, and entered satisfaction upon the record. It was held: that the attorneys had no lien on the judgment, and could not disturb the satisfaction entered by the plaintiffs.— Mansfield vs. Dorland, 2 Cal., p. 507. The plaintiff in an execution may accept of promissory notes by a special agreement, as an absolute payment of the judgment, but the agreement must be proved by testimony other than the Sheriff's return.-Mitchell vs. Hockett et al., 25 Cal., p. 542. TITLE IX. OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. CHAPTER I. The execution. II. Proceedings supplemental to the execution. CHAPTER I. THE EXECUTION. SECTION 681. Within what time execution may issue. 682. Who may issue the execution, its form, to whom directed, and what it shall require. SECTION 683. When made returnable. 684. Money judgments and others, how enforced. 685. Execution after five years. 686. When execution may issue against the property of a party after his death. 687. Execution, how and to whom issued. 688. What shall be liable to be seized in execution. Not to be affected till a levy is made. 689. When property is claimed by a third party, how the right of property is tried. 690. What exempt from execution. 691. Writ, how executed. 692. Notice of sale under execution, how given. 693. Selling without notice, what penalty attached. 694. Sales, how conducted. Neither the officer conducting it nor his deputy to be a purchaser. Real and personal property how sold. Judgment debtor, if present, may direct order of sale and the officer shall follow his directions. 695. If purchaser refuses to pay purchase money, what proceedings. 696. Court of justice may proceed in a summary manner against a purchaser refusing to pay. Officer may refuse such purchaser's bid after. 697. These two sections not to make officer liable beyond a certain amount. 698. Personal property not capable of manual delivery, how delivered to purchaser. 699. Personal property not capable of manual delivery, how sold and delivered. 700. Real property, when absolute sale or not. In the latter case, what the certificate must contain. 701. Real property so sold, by whom it may be redeemed. 702. When it may be redeemed, and redemption money. 703. When judgment debtor or other redemptioner may redeem. 704. In cases of redemption, to whom the judgments are to 705. What a redemptioner must do in order to redeem. 707. Rents and profits. 708. If purchaser of real property be evicted for irregularities in sale, what he may recover, and from whom. When judgment to be revived. Petition for the purpose, how and by whom made. 709. Party who pays more than his share may compel con tribution. |