Isaac v. Swift.

Now, in the case at bar, he certainly seized the beneficial interest in the lot, and held it for seven days, even under the theory of the Court below. The question then arises, must not the sheriff have the power to sell and convey whatever he had a right to seize and advertise for sale? This conclusion is so absolute and incontrovertible, that we are willing to rest the whole of this case upon this point alone, believing no Court will recognize the possibility of one of its officers occupying the singular position of a fraudulent auctioneer or vendor, offering and selling that, as a minister of the law, which he has no right to sell or convey. Inutilis labor, et sine fructu, non est effectus legis.

The case of appellant is, however, sustained by the doctrine of relation.

The sale and all proceedings had after the fourth day of October, A. D. 1855, under the Reynolds execution, take effect by relation to that period. Prescott v. Wright, 6 Mass., 20; Brown v. Maine Bank, 11 Mass., 152; Heywood v. Hildreth, 9 Mass., 392.

The argument of respondent addressed to the third point, is based upon two grounds:

1. That the order made in each of the insolvency cases, on the 8th and 14th of November, 1854, and which continued for thirty days, contained and was only intended as a prohibition of proceedings against the person of the insolvent, and that it did not affect suits against the estates of the insolvents.

2. That the orders mentioned would not be noticed by a Court of Law in the enforcement of a lien, and therefore did not abridge the lien of the Reynolds judgment.

Our answer to the first point is, that the object of our Insolvent Law is as much to restrain one or more creditors from swallowing up the whole proceeds of the insolvent's estate, to the exclusion of the other creditors, and to insure an equitable distribution of the proceeds thereof among all the creditors, as to shield the person of the debtor from legal assaults. If we are correct in this view, then the question presents itself for determination whether the order of the Court, ordering all proceedings against the estate of the insolvent to be stayed for thirty days, prevented our seizure of the property in execution for that period of time. We admit that the proceedings did not destroy our lien, (in that particular our act differs from the English practice,) but what we claim is that the Judge, in determining questions which arise under our Insolvent Act, (the same partaking of the nature of a special proceeding,) has the power to prohibit creditors having liens on the estate of the insolvent prior to his petition in insolvency, from enforcing those by "execution," and to order that the matter of all claims against the insolvent's estate be referred to a master to determine the priority of the demands, and the most judicious manner of sale, and upon such report to cause a

Isaac v. Swift.

sale of the insolvent's effects to be made, and the liens thereon to be paid according to their priority.

The second objection of respondent is a mere resuscitation of the exploded rule, that Courts of Law would not notice the injunctions of the Chancellor, and is fully met by the fact that the orders of the eighth and fourteenth of November, A. D. 1854, were not the orders of the Chancellor, but the orders of the Judge, in a proceeding partaking in its character as much of law as equity. Then, if we are correct in our conclusion, that the orders in insolvency prevented us for thirty days from issuing execution, are we entitled to that much additional time to enforce the lien of the Reynolds judgment? Such was the rule of common law. 3 Bacon's Abridgment, 724; Dewey v. Latson, 6 Cal. R., 430.

Crocker & Robinson for Respondent.

That the title to the premises is vested in the defendant. The statute provides that from and after the time a judgment is docketed it becomes a lien upon all the real property of the judgment-debtor, "until the said lien expires. The lien shall continue for two years." Practice Act, § 204.

The Reynolds & Co. judgment was docketed October 11, 1853, and the lien expired on the 11th of October, 1855, which was nine days before the sale to Cadwalader. At the time of his purchase, therefore, the judgment was no longer a lien upon the premises, and his purchase was subject to the unexpired lien of defendant's judgment.

But it is urged that, as the execution was issued and levied October 4, 1855, seven days before the lien expired, the judgment-lien was thereby extended, and continued in force to the day of sale. We reply, that the law is well settled that the sale must be made within the two years, otherwise the purchaser can not claim the benefit of the judgment-lien. And, in support of this position, we cite the following authorities: Roe v. Swart, 5 Cowen, 294; Little v. Harvey, 9 Wend., 157; Tufts v. Tufts, 18 Ib., 621; Dickinson v. Gilliland, 1 Cowen, 481; Graff v. Kip, 1 Edw. Ch. Rep., 619; Burne v. Moner, 13 S. & M., 427; Rupert v. Dantzler, 12 Ib., 697; Kilpatrick v. Byrne, 25 Miss., 571; Trapnall v. Richardson, 8 English, Ark., 543; Dickenson v. Collins, 1 Swan. Tenn., 516; Miller v. Estell, 8 Yerger, 452; Davis v. Eternam, 20 Penn. State Rep., 256; Shephard v. Bailleal, 3 Texas, 26; 3 Ohio, 135; 9 Ohio, 142.

The effect is, that the judgment, after the lien has expired, becomes a junior judgment to later judgments whose liens are unexpired. 7 Cowen, 540; 1 Edw. Ch. Rep., 619.

And a purchaser under it has the right to redeem a sale made under such later judgment. 7 Cowen, 540.

The appellant cites several cases which, he insists, conflict with

Isaac v. Swift.

these decisions, the most important of which are from Penn. R. The leading case is 13 Serg. & Rawle, 144, which was decided upon the common opinion and practice of the bar, and not upon established legal principles. The main question passed upon was, whether it was necessary to receive such a judgment by scire facias. This case was followed by others in 1 Pen. & Watts, 444, and 2 Barr, 490, under the statute of 1798.

In 1827, a new law was enacted upon the subject, and the Court did not hesitate, when the question again came before them, to change their rulings, having seen the great evils flowing from their former decisions; so, in 20 Penn. State Rep., (8 Harris,) 256, they decided in accordance with the decisions in New York and other States. In this case, the Court points out very forcibly the evils of the contrary doctrine.

The appellant also cites 12 Missouri, 361, as a conflicting case. In that State, sheriffs' sales are required by law to be made at a term of the Circuit Court. The Legislature had postponed the term of Court in Warren county, providing in the act, however, that sales of property which would have been made at the old term, should be made at the next term. This postponement brought the sale in this case beyond the time fixed for the lien, and the Court very properly held that the act saved the rights of the party, which would otherwise have been lost; that the delay was not by his consent, and it would be great injustice to allow it to work him an injury.

The case in 13 Howard, 287, is also cited. There, before the sale under the judgment, the debtor died, but an execution had been levied upon the premises in his lifetime; after his death, a venditoni exponas issued, under which the property was sold, and the question was, whether this sale was valid, no scire facias to receive the judgment having been issued. The Supreme Court held it was, because, by the levy of the execution, the property was in the custody of the law. The question involved in this case was not passed upon or involved in that case, and it therefore has no application.

But it is urged by the appellant, that the general orders, "staying proceedings against the debtors" in the insolvency proceedings, operated to extend the lien at least thirty days. That during that time, Reynolds & Co. could not issue execution or enforce the lien, and, therefore, the lien should be extended.. The eighth section of the Insolvent Act, Compiled Laws, 316, provides that the Court "shall order that all proceedings against the debtor be stayed." This applies on y to proceedings against "the debtor," and not those which are solely against his property, to enforce liens previously acquired. In fact, the statute expressly excepts them from the operation of the law. Compiled Laws, § 36, p. 321.

This Court has already decided that an action for the enforce

Isaac v. Swift.

ment of a lien is not affected by the proceedings in insolvency, but the party proceeds, sells the property under his lien, and if there should remain a surplus, after discharging the lien and costs, the assignee would be entitled to it. Rix v. McHenry, 7 Cal., 89.

These cases effectually dispose of this point, for they show conclusively that these general orders did not prevent Reynolds & Co. from issuing at any time to enforce their lien against the property of the debtor. If they had attempted to proceed against him personally, it would no doubt have been a contempt of the Court, because that would have been a disobedience of the order.

We think the correct rule to be, that no orders or decrees made in a suit other than that in which the judgment is rendered, can affect this question of the expiration of the lien, for the reason that persons purchasing property at sheriff's sale can have no

notice of them.

Reynolds & Co. had ample time (ten months) after these orders ceased to operate, to issue execution and sell, and if they feared that the issuance of an execution, while the orders were in force, might be considered a contempt, the Court, on motion, would have granted them leave to proceed and enforce their lien; though, under the decisions of this Court, no such leave was necessary.

Questions similar to this have been passed upon by the other Courts. Thus, it was held that proceedings under the United States bankrupt law, did not affect a judgment-lien. 2 Story's Rep., 376; 9 Smedes & Marshall, 9.

So, an injunction against enforcing the judgment, will not affect the lien, or operate to extend it. 3 Texas Rep., 26; 8 Yerger, 452; 4 How. Miss. Rep., 185.

In 9 Wend., 157, it was held, under the law of New York, that an injunction, or writ of error, would extend the lien, but it was doubted whether a Judge's order, staying proceedings, was an injunction, within the meaning of the act.

In Ohio, it has been held that an order staying execution would not extend the time. 3 Ohio, 135; 9 Ohio, 142.

The judgment ceases to be a lien at the expiration of the statutory limit, although no execution could have been taken out within the whole time. 7 Paige, 137.

The appellant refers to the case of Dewey v. Latson, 6 Cal. R., 130, as establishing the contrary doctrine. In that case, this Court merely decided that when a judgment was appealed, the statute respecting the lien did not commence running until the remittitur from the Appellate Court was filed. This is correct, because the pendency of the appeal suspended the judgment, and until the remittitur was filed it stood as though no judgment had been rendered. This has no application in the present case,

Isaac v. Swift.

because the Insolvent Act (§ 36) expressly provides that "all liens" previously existing "shall remain good and valid, and may be enforced in the same manner as though no such surrender had been made."

The question whether a levy upon real estate is a satisfaction of the judgment, is not properly involved in this case, but the following cases hold that it is not: 4 Mass., 403; 14 Wend., 260.

So it is urged, that as the sheriff had a right to levy upon the lot, therefore he had a right to sell, after the lien had expired, with the same effect as though the lien still existed; otherwise it would make the sheriff a "fraudulent vendor." To this we say that the sheriff always sells property subject to legal liens, and he has no power to decide upon these liens. It is for the purchaser to ascertain what kind of a title he is buying. In this case, Cadwalader purchased subject to the lien of the Swift judgment, which had, by the delay, obtained priority, and he could have secured a valid title had he paid off Swift's judgment, or redeemed the sale to Swift. Having neglected to do this, he stands like any other person, purchasing property subject to prior liens, which eventually sweep the property. He bought with his eyes open.

The appellant also relies upon the doctrine of relation, but we can not conceive how that doctrine can extend a judgmentlien for a single day beyond the time fixed by the statute. It is the doctrine of extension, and not of relation, that we are now investigating.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

This controversy has relation to a lot in Sacramento city, both parties claiming title under Arents and Chedic. Reynolds & Co. obtained judgment against Arents and Chedic on the 11th of October, 1853, upon which execution was issued and levied 4th of October, 1855, and the property sold by the sheriff on the 20th of October, 1855, to the vendor of plaintiff. On the 8th of June, 1854, the defendant, Swift, obtained judgment against Arents and Chedic, upon which execution was issued and levied in February, 1856, and the property sold to defendant by the sheriff in March, 1856.

It will be seen that the execution upon the judgment of Reynolds & Co. v. Arents and Chedic, was issued and levied seven days before the expiration of two years from the date of the judg ment, and that the sale was made some nine days afterwards. The question is, whether the issue and levy of this execution, before the lien of the judgment expired, had the effect to prolong the lien beyond the time limited by section two hundred and four of the Code. That section provides, "that from the