of foreclosure of mortgage, had not acquired jurisdic-
tion of the party owning the land at the time of fore-
closure.-Steinbach vs. Leese, 27 Cal., p. 295. The
Sheriff, who has the writ of habere facias possessionem,
must remove all persons who came upon the property
after the suit was begun, except a person, other than
the defendant, who is in possession under a title adverse
to defendant.-Long vs. Neville, 29 Cal., p. 135; see,
also, Leese vs. Clark, 29 Cal., p. 665; Le Roy vs.
Rogers, 30 Cal., p. 230.

judgments

how

enforced.

684. (§ 213.) Where the judgment requires the Money payment of money or the delivery of real or personal and others, property, the same may be enforced by a writ of execution; when it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom the same is rendered, or upon the person or officer required thereby or by law to obey the same. Obedience thereto may be enforced by the Court, and after a final judgment of partition, the Court has power to enforce a severance of the possession.

NOTE.-Where an execution, commanding the Sheriff

to deliver possession of a chattel, has been finally and
completely executed, the power of the Sheriff under it,
and the authority of the Court to enforce it, cease; and
a wrongdoer, afterwards trespassing upon the person
thus put in possession, is not guilty of contempt for
disobedience to the process of the Court.-Loring vs.
Illsley, 1 Cal., p. 24.

after five

685. (§ 214.) In all cases other than for the re- Execution covery of money, the judgment may be enforced or years. carried into execution after the lapse of five years from the date of its entry, by leave of the Court, upon motion, or by judgment for that purpose, founded upon supplemental pleadings.

NOTE.-Before April 8th, 1861, execution could be taken out on judgment at any time within five years after the rendition of the judgment, and also after that time, upon leave of the Court. Between April 8th, 1861, and April 2d, 1866, it could only be taken out within the five years after judgment rendered. Since April, 1866, however, an execution, in all cases except

When execution may issue

against the property of a party after his death.

Execution,
how and
to whom
issued.

What shall

be liable to

execution.

686.

for the recovery of money, may issue after five years upon order of the Court.-Mann vs. McAtee, 37 Cal., p. 12. The time during which plaintiff is stayed from issuing execution constitutes a part of the five years within which execution must issue, and after that time has elapsed it must then be upon order of the Court.Solomon vs. Maguire, 29 Cal., p. 237.

(§ 215.). Notwithstanding the death of a party after the judgment, execution thereon may be issued, or it may be enforced, as follows:

1. In case of the death of the judgment creditor, upon the application of his executor or administrator, or successor in interest;

2. In case of the death of the judgment debtor, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon.

687. (§ 216.) Where the execution is against the property of the judgment debtor, it may be issued to the Sheriff of any county in the State. Where it requires the delivery of real or personal property, it must be issued to the Sheriff of the county where the property, or some part thereof, is situated. Executions may be issued, at the same time, to different counties.

688. (§ 217.) All goods, chattels, moneys, and be seized in other property, both real and personal, or any interest therein of the judgment debtor, not exempt by law, and all property and rights of property, seized and held under attachment in the action, are liable to execution. Shares and interests in any corporation or company, and debts and credits, and all other property, both real and personal, or any interest in either real or personal property, and all other property not capable of manual delivery, may be attached on execution, in like manner as upon writs of attachments. Gold dust must be returned by the officer as so much money collected, at its current value, without

exposing the same to sale. Until a levy, property is Not to be not affected by the execution.

NOTE.-1. "PROPERTY" DEFINED.-See Sec. 17, ante, Subds. 3, 4, and 5. The term "property" includes a judgment.-Adams vs. Hackett, 7 Cal., p. 203; 13 Cal., p. 15; Davis vs. Mitchell, 34 Cal., p. 88. "Property' is the exclusive right of possessing, enjoying, and disposing of a thing; it is the right and interest which a man has in lands and chattels to the exclusion of others; and the word is sufficiently comprehensive to include every species of estate, real and personal.McKeon vs. Bisbee, 9 Cal., p. 142. The term " property in lands" is not confined to title in fee, but is sufficiently comprehensive to include any usufructuary interest, whether it be a leasehold or mere right of possession.-State of California vs. Moore, 12 Cal., p. 56. The term "property," as applied to lands, embraces all titles, legal or equitable, perfect or imperfect.Leese vs. Clark, 20 Cal., p. 388; 12 Cal., p. 56.

2. WHAT IS SUBJECT TO EXECUTION.-Where A. had merchandise stored in the warehouse of B., and sold a portion of it to C., and gave an order for the merchandise sold on B., who accepted the same, and gave C. in exchange a receipt for the same, and transferred it on his warehouse books to the account of C., but did not separate any specific portion from the merchandise of A. as belonging to B., and the whole was subsequently seized in an action against A., it was decided that the Sheriff was not liable to C., in the absence of segregation of the merchandise, but that B. was estopped by his receipt from denying his liability.Adams vs. Gorham, 6 Cal., p. 68. Plaintiff was walking along the street with a bag of gold coin in his hand. Two of defendants, a deputy Sheriff and Constable, seized him, and by force took the bag of coin from him. Plaintiff sues for the seizure and conversion of the coin. Defendants produced three judgments and executions in their favor against G., brother of plaintiff, and proved that the bag of coin was the property of the brother, and was seized under these executions. On appeal, it was decided that plaintiff could claim no exemption from the seizure of coin held, as this was in his hand, though he might, perhaps, in reference to money upon his person. The coin in the hand was, like a horse held by the bridle, subject to seizure on execution against its owner.-Green vs. Palmer, 15 Cal., p. 411. Funds in the hands of a receiver, in an action for dissolution, are liable to attachment at any

affected till a levy is made.

time before a final decree of dissolution and distribution.-Adams vs. Woods, 9 Cal., p. 24. Where the judgment debtor has property jointly with another, a Sheriff, who has such execution, has the right to levy on such property and take it into possession, for the purpose of subjecting it to sale.-Waldman vs. Broder, 10 Cal., p. 378. F. purchased some yokes of oxen of H., the appellant, for a certain sum, paid part down, and gave his note, with C. as surety, for the balance; C. signed with the express condition that title to the oxen was to remain in H. till they were fully paid for— F. was to have the absolute use of them. The oxen were placed in the hands of a brother of H., who was in the employ of F. as a driver, with the intention of securing the title in H. The defendant, a Constable, levied upon and sold the oxen thus situated, as the property of F. And it was decided upon appeal that F. had such a right of property in them as was subject to execution, the sale by H. to F. being absolute.Helm vs. Dumars, 3 Cal., p. 454. The interest of a partner in partnership goods, etc., subject to levy on execution against him.-Jones vs. Thompson, 12 Cal., p. 191. But is subject to prior rights and liens of other partners and joint creditors of firm.-Id.; Eldridge vs. See Yup Co., 17 Cal., p. 44. If a partnership becoming embarrassed converts its means (upon the strength of which it has theretofore obtained credit) into real estate to be held by one of the partners as a homestead for the purpose of defrauding creditors, the property, notwithstanding the declaration of homestead, is liable to levy on execution by partnership creditors.-Bishop vs. Hubbard, 23 Cal., p. 514. Interest of mortgagor liable to sale on execution.-Halsey vs. Martin, 22 Cal., p. 645. A promissory note is liable to seizure and sale on execution against holder and payee.-Davis vs. Mitchell, 34 Cal., p. 88, and cases there cited. A purchaser on execution sale of real estate has an estate in the property purchased, both before and after the time when right of redemption expires, which is subject of attachment on execution against his property.-Page vs. Rogers, 31 Cal., p. 293. A ferry boat property of private individuals is not exempt from execution because it is used to carry the U. S. mails.-Lathrop vs. Middleton, 23 Cal., p. 257.

3. PROPERTY NOT LIABLE TO EXECUTION.-A. delivered merchandise as security for payment of a debt from A. to B., with the understanding that B. should sell the merchandise and pay his debt out of the proceeds. The merchandise was afterwards levied upon

by the defendants, under an execution in their favor
against A., as his property. Held: that the merchan-
dise was not subject to execution against A., without
payment in the first place of his indebtedness to
B.-Swanston vs. Sublette, 1 Cal., p. 123. A franchise
is not the subject of levy and sale under execution.-
Thomas vs. Armstrong, 7 Cal., p. 286; 24 Cal.,
p. 474.
Things in action may be levied upon on execution.-
Adams vs. Hackett, 7 Cal., p. 187. Even where there is
personal property sufficient to satisfy the execution, yet
the Sheriff may, on the request of the defendant in
execution, properly levy on real estate.-Smith vs. Ran-
dall, 6 Cal., p. 47. Property in the custody of the law
is not liable to execution without an order from the
Court.-County of Yuba vs. Adams, 7 Cal., p. 35;
Clymer vs. Willis, 3 Cal., p. 363. Where money has
been placed on general deposit in a bank, and nego-
tiable certificates of deposit have been issued to the
depositor for the amount, there is nothing left in the
possession of the bankers belonging to the depositor
which is liable to attachment.-McMillan vs. Richards,
9 Cal., p. 365. An execution cannot be levied upon a
county's revenues in the hands of the Treasurer.-Gil-
man vs. Contra Costa County, 8 Cal., p. 52. Contin-
gent and complicated contracts cannot be levied upon
and sold unless they are in the possession of the officer,
exhibited to the bystanders, and assigned to the pur-
chaser. A full and accurate description of the particu-
lar interest and chose in action, with all its conditions
and covenants, and a full explanation of the facts
determining the value of the chose, must be given by
the levy and announced at the sale.-Crandall vs.
Blen, 13 Cal., p. 15; see, also, Davis vs. Mitchell, 34
Cal., p. 88. A. conveyed land to B., and allowed part
of the purchase money to remain unpaid. B. after-
wards sold part of the land to C., who had no notice
of A.'s lien as a vendor, and gave a mortgage to B.
for part of the purchase money. A. obtained judg-
ment against B. for the unpaid purchase money, and
levied upon and sold B.'s interest in the land. The
title to the mortgage debt due from C. to B. did not pass
by the sale.-Bryan vs. Sharp, 4 Cal., p. 351. Simply
because a judgment debtor was found upon the mining
ground of plaintiff, the Sheriff, who had execution
against such debtor, was not justified in going on the
ground and digging up the soil, and taking the gold it
contained.-Rowe vs. Bradley, 12 Cal., p. 226. If A.

77-VOL. I.