By the Court, Rhodes, J.:
The plaintiff claims title through the judgment of Martin v. Sanders & Brenham, rendered November 22d, 1865, and the defendant through the judgment of Massett v. Sanders & Brenham, rendered November 19th, 1855. There are other judgments involved in the case, but the two mentioned present all the material questions. It was stipulated that the “ sole issue to be tried herein is, which party succeeded to the title of Sanders & Brenham.”- An attachment was issued in the Martin case, which was levied on the property in question November 6th, 1855. An attachment was also issued in the Massett case at the commencement of the action,' but it does not appear that it was levied. An execution was issued upon the Martin judgment November 22d, 1855, which was levied upon the property on the next day; and on the 24th of November, 1855, an execution upon the Massett judgment was issued and levied upon the property. ‘ In December, 1855, a temporary injunction was issued in the action of Peyton v. Scannell, Sheriff, et al., restraining all proceedings under the judgments and executions above mentioned, and the Sheriff returned both the executions. The injunction was dissolved June 5th, 1858. A second execution was issued on the Massett judgment November 19th, 1857—pending the temporary injunction—and under it the property was levied upon, and sold to Ward December 10th, 1857, and was conveyed to him by the Sheriff in 1862.
A second execution was issued on the Martin judgment December 30th, 1857, which was returned without making sale, and a copy was filed in the Recorder’s office February 6th, 1858; and on the 30th of April, 1858, a third execution was' issued, under which the property was sold, June 5th, 1858, to Sharp. In 1856 Griffith recovered a judgment against Sanders & Brenham, and under it he redeemed the property from the sale under the Massett judgment, and in June, 1859, the Sheriff conveyed the premises to him as a [129] redemptioner, and in the following month Griffith conveyed the same to Ward, the defendant.
The Sheriff’s deed to the defendant of the date of June 29th, 1862, was not admissible in evidence. It was executed subsequently to the stipulation, which limited the issue to the title then held by the respective parties. The rule upon •which the defendant relies—that a Sheriff’s deed takes effect by relation, for certain purposes, at the date of the sale—does not obviate the objection, for the legal title alone is in issue in the action, and that did not pass until after the stipulation was made and the answer filed. Whatever title was acquired under the deed it could not be relied on by the defendant without having been set up by supplemental answer. (McMinn v. O’Connor, 27 Cal. 247; Moss v. Shear, 30 Cal. 472.)
The plaintiff’s objection to the evidence and findings in • respect to the redemption by Griffith from the sale to defendant is not well taken.
The plaintiff introduced evidence showing that such redemption was made, and he cannot complain that the defendant did not supplement the evidence by production of the papers upon which Griffith claimed the right. The Sheriff’s return, produced by the plaintiff, had this indorsement : “ The within described property redeemed by Mellen Griffith, this 24tli day of February, 1858. James C. Ward, by George R. Ward, attorney.” Whatever may he the rule where another creditor or the judgment debtor claims the right to redeem either from the purchaser or a redemptioner who resists the claim, it is clear that as between the immediate parties to the redemption, the production of the papers mentioned in the statute may be waived. A creditor not pursuing that remedy, but proceeding under his own execution, has no more cause to complain of such waiver than of the fact that the purchaser did not insist upon all the percentage to which he was entitled. The redemption is virtually a transfer of the certificate of sale, and although the redemptioner might not be entitled to demand the amount of his [130] lieu from a subsequent redemptioner, because of his failure to strictly comply with the law; yet, if he was entitled to redeem, and effected the redemption to the satisfaction of the purchaser, the Sheriff’s deed passed the same title that it would have done had it been executed to the purchaser without redemption. It was held in People v. Ransom, 4 Denio, 148, that the purchaser may dispense with the production of any paper which would be required where the redemptioner was enforcing the right of redemption against a purchaser. Mr. Justice Bronson, in delivering the opinion of the Court, said: “ The immediate parties to the transaction [the redemption] may make what bargain they please. They may respectively insist on all that the law will give them, or they may accept of less. But whether they can omit anything required by the statute so as to affect other creditors coming to purchase, is a very different question.” The opposite view was taken in People v. Ransom, 2 N. Y. 490, in which it was considered that the question was one of power in the Sheriff to execute the deed; but we think the opinion of Mr. Justice Bronson is more consonant with principle and reason; and we are of the opinion that, if the purchaser acknowledge in writing the redemption by one entitled by law to redeem, the Sheriff has authority to execute to him the deed, without inquiry as to the papers produced to the purchaser.
We come now to a question of greater importance and of some difficulty—the question upon which the former decision mainly turned—whether the levy of an execution upon real estate, during the pendency of a judgment lien, constitutes a new and distinct lien. We regret that counsel have not given this question more thought and labor. The chief cause of difficulty in construing the statute arises from the circumstance that our statute is mainly copied from that of Yew York, in which the lien of the judgment continues for ten years from the docketing, and an execution may be issued at any time within five years, and after that time, on leave of the Court; while, under our statute, the lien of the [131] 'judgment continues two years from the time it is docketed, and execution may issue at any time within five years.
■ In the investigation of the question, the attachment, judgment, and executions will come up for review. The purpose of an attachment is to hold the property of the defendant as security for such judgment as may be rendered, (Practice Act, Sec. 120,) and when the judgment is rendered and becomes a lien upon the property attached, the lien of the attachment becomes merged in that of the judgment, and the only effect thereafter of the attachment lien upon the property is to preserve the priority thereby acquired, and this priority is maintained and enforced under the judgment. If it does not cease at that time, except as giving priority to the judgment lien, when does it cease? Does it continue after the judgment lien has expired by limitation? The attachment lien, as to its amount, depends upon the ex parte statement of the plaintiff, while that of the judgment is certain. The lien of the latter is of a higher order, if it is possible that there can be different ranks among the liens. We will hazard the assertion that the law does not contemplate the existence, at the same time, of two distinct liens, arising by operation of law in one action, for the security of one demand. If the position is correct that the attachment lien ceases, except as maintaining priority for the judgment lien upon the property attached, it does not revive on the expiration of the judgment lien. Our remarks are confined to real property, as the judgment does not constitute a lien upon personal property.
The judgment being a lien for two years from the time it is docketed upon the real estate of the defendant within the county in which the judgment is docketed, and a lien for the same time upon the real estate in any county in which a transcript of the docket is filed with the Recorder, such liens are enforced by executions. That is the only purpose of the execution in respect to real estate while the judgment lien subsists. Section two hundred and ten, prescribing the form of the execution, provides that it shall require the Sheriff to [132] satisfy the judgment out of the personal property of the debtor, etc., “or if the judgment be a lien upon real property, then out of the real property belonging to him on the day when the judgment was docketed, or if the execution be issued to a county other than the one in which the judgment was recovered, on the day when the transcript was filed in the office of the Recorder of such county, stating such day, or at any time thereafter.” This section manifests the purpose of the execution so far as respects the lands that are covered by the lien of the judgment. . Under the execution, doubtless, lands not subject to the judgment lien may be levied upon. It is provided in section two hundred and seventeen that all property, both real and personal, of the judgment debtor “may be attached on execution in like manner as upon writs of attachment.” We are not required in this case to reconcile the apparent conflict between this section and section two hundred and ten, which prescribes what the execution shall contain, but we shall hereafter recur to the subject of a levy of the execution upon real property not subject to the lien of the judgment.
The doctrine of Wood v. Colvin, 5 Hill, 228, that the judgment being a lien upon the lands, a levy is unnecessary, that the judgment binds the lands, and the execution comes as a power to sell, is often cited with approbation, and is, we think, the correct rule. The same principle is stated in Catlin v. Jackson, 8 Johns. 548. The Chancellor, in delivering the unanimous opinion of the Court of Errors, says: “In several essentials the effect of the execution must be different from a fi. fa. levied on personal estate only. The delivery of the fi. fa. gives no new rights to the plaintiff and vests no new interests. The general lien is created by the judgment, and the execution is merely to give that lien effect—not by vesting a possessory right to the land affected by it in the plaintiff, but by designating it for a conversion into money by the operation of the fi. fa. and the act of the Sheriff by virtue of it.” Although a levy of the execution is unnecessary to give effect to the judgment lien, yet that course is [133] usually pursued, and the question arises whether the levy creates a new lien distinct from that of the judgment.
The statute has not declared that the levy shall constitute a lien. At common law the levy did not constitute a lien upon lands, nor could the title to lands be affected by an execution in satisfaction of a money judgment. Tinder a levari facias, not even the possession of lands, but only the present profits, were transferred; and when the writ of elegit was given by statute, the possession of a moiety of the defendant’s lands was given to the plaintiff. (3 Blackst. Com. 417.) Mr. Chancellor Kent, in discussing the subject of the lien of judgments, executions, etc., says: “The lien, after all, amounts only to a security against subsequent purchasers and incumbrancers; for, as the Master of the Bolls said in Brace v. Duchess of Marlborough, it was neither jus in re nor jits in rem—the judgment creditor gets no estate in the lands; and though he should release all his right to the land, he might afterwards extend it by execution.” (4 Kent Com. 437.) A lien being a mere priority over subsequent purchasers and incumbrancers, it is a contradiction of terms to say that by the levy a new priority is acquired, which, instead of ante-dating, must, of necessity, post-date the priority already held.
The doctrine in New York and in this State is, that in order to preserve the priority acquired by the judgment lien, the sale must be made during the statutory period of the lien. (Isaac v. Swift, 10 Cal. 81; Roe v. Swart, 5 Cow. 294; Little v. Harvey, 9 Wend. 158; Tufts v. Tufts, 18 Wend. 621; Graff v. Kipp, 1 Edw. 619;. Pettit v. Shepherd, 5 Paige, 493.) This was so held on the ground that the opposite rule would extend the lien beyond the time mentioned in the statute. It would seem unaccountable that the Legislature should have been so particular in fixing the period of the existence of the judgment lien, and that the Courts should have been so careful in maintaining it, if, at the same time, the plaintiff might have acquired' a lien through the execution that would last for the lifetime of the judgment.
[134] In the cases cited, when the executions were issued, but the lands were not sold during the lien of the judgments, there was abundant room for the question now presented. The Vice Chancellor said, in Graff v. Kipp: “A plaintiff must take care to sell the lands of the defendant before the expiration of ten years, in order to avoid the danger of other incumbrances intervening; or if he wishes to continue the lien without a sale, then he must have a fresh judgment docketed before the other creditors come in and obtain j augments.” His familiarity with the effect of the levy of executions would readily have suggested to him the lien of the execution instead of that of a “fresh judgment,” if, in his opinion, the former constituted a lien, pending the lien of the latter. Mr. Justice Harris says: “The doctrine on the subject [dormant executions] does not apply to real estate, the lien upon which depends upon the docketing of the judgment, and not upon the execution or levy” (Muir v. Leitch, 7 Barb. 341.)
There are several provisions of the statute that throw light upon and in some degree test this question. Suppose a judgment is docketed and execution issued and levied upon the defendant’s lands, but no sale made within the two years of judgment lien, and that one year subsequent to the docketing of the first, another creditor obtains and dockets his judgment and issues and levies his execution on the same lands. The senior judgment, after the two years of its lien, loses its priority, and we have seen that a sale upon execution, after that time, does not extend the lien of the judgment, and during the third year after the docketing of the judgment the levy, if it constituted a lien, became a dormant lien, for during that year the junior judgment has priority, and a sale under it would pass the title; and if, after the expiration of the third year, without sale under the junior judgment, the priority shifts back to the first levy, it must be worked out by a process of revivor, for which we find no warrant in the statute. Or suppose the judgment defendant sells and conveys the lands during the existence of the judgment lien, [135] and after the levy of the execution, but there is no sale under the execution until after the judgment lien expires, do the lands remain chargeable with the judgment? No one will so affirm unless he is prepared to say that a judgment remains a lien as against subsequent purchasers for five years. Subsequent incumbrancers stand on the same footing with subsequent purchasers as to the operation of prior liens.
The Practice Act (section two hundred and thirty) provides for a redemption, and those entitled to redeem are the judgment debtor, his successors in interest, and a creditor having a lien by judgment or mortgage subsequent to that on which the property was sold. It is unaccountable that the Legislature should have omitted those having liens by executions, if it was intended that the levy should create a lien. It is provided by section two hundred and thirty-one that the redemptioner shall pay not only the purchase money, with the percentage, etc., but also the amount of any lien prior to that of the redemptioner. Had the second creditor, in the case first supposed, sold the lands during the second year of his lien, the first creditor could not have redeemed, because he did not- hold & 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 two hundred and fourteen 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 [136] 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. Hot only would this purpose be defeated if the creditor could, during tho 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 lieu, 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. Ho one would contend for such a principle. If there was no lien when the defendant sold the property, none could bo 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 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 v. Swart, 5 Cow. 294; Barker v. Gates, 1 How. Pr. 77; Jackson v. Robert, 11 Wend. 422.) It was held in Roe v. 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 [137] judgment was docketed in that county, the execution took priority from the date of the docketing. (Stoutenburgh v. Vandenburgh, 7 How. Pr. 229.)
The policy of the law, in requiring conveyances, instruments, and proceedings affecting real estate to be made a matter of record, so as to impart notice to those dealing with the property, is manifest from numerous provisions of the statute. The provisions for the recording or filing in the proper office of deeds, mortgages, contracts, notices of Us pendens, judgments and attachments, are familiar instances. It may be contended, and, perhaps, maintained, that by the provisions of section two hundred and seventeen, that property “ may be attached on execution, in like manner as upon writs of attachment,” it was intended that a copy of the writ, with a description of the property levied upon, as in the case of an attachment when real property is seized, should be filed in the proper Recorder’s office; but, however this may have been, it is too late now to insist on that construction. The practice has been almost uniform since the adoption of that provision in 1851, to omit the filing of a copy of the execution in the Recorder’s office. Cases almost innumerable have been litigated, in which the levies of executions were in question, and it has not been held anywhere, so far as we are apprised, that the filing of a copy of the execution and levy in the Recorder’s office was essential to the maintenance of the levy. Vast amounts of land are held under execution sales, in which copies of the writ and levy were not filed in the Recorder’s office; and a change in the construction of the clause of the section mentioned, even if we thought the practical construction given to it was incorrect, would be followed by most disastrous consequences. The change in the practice, if any is necessary, should be made by the Legislature, so that its operation might be only prospective. It requires no argument to show the bad policy, if not injustice, of charging those dealing [138] with the property with constructive notice of a lien which is not a matter of record.
Whore there are no judgment or attachment liens, the levy operates upon real property as it does upon personal property—that is, the execution first served has priority. Whether such priority extends to subsequent conveyances, mortgages, or judgments, it is unnecessary in this case to determine. Nor does it become necessary to inquire as to the priority of executions levied before, but the sales made after the expiration of the judgment liens, for the property in controversy was, in each case, levied on and sold under an execution issued after the expiration of the judgment lien, and by the successor of the Sheriff to whom the first executions were issued. The common law rule that the officer who has commenced the execution of process may complete it, though the return day has passed, will not aid the plaintiff, for the rule has not been extended so as to give such power to the officer's successor, except when the power is conferred by statute, and we have no statute that would reach the case; and besides this, the officer who made the sale did not pretend to act under the executions which were first levied upon the property.
If the plaintiff is restrained from issuing or proceeding with his execution until the judgment lien is about expiring, and, therefore, insists that he ought to have the benefit of a lien by means of the levying of the execution, the answer is, that he may demand adequate security when the restraining order is made. If he could acquire such a lien, there is but little doubt that, in order to avoid contingencies, he would in most cases make the execution lien cover all that the judgment lien did, and thus the latter lien would, in effect, be extended three years beyond its original limit. If a lien of a greater duration is desired, the remedy is with the Legislature, and the provisions of the statute on this subject might then be brought into more complete harmony.
Our conclusion upon this branch of the case is that, pending the judgment lien, the levy of the execution neither [139] extends the existing lien nor creates a new lien; that the sales under the executions took effect by relation at the time they were respectively levied, and not at the date of the levying of the previous executions.
The sale and conveyance under the Massett judgment, being prior to that made under the Martin judgment, the title to the property vested in the defendants, unless the Sheriff’s sale was not merely voidable, but void, because of its having been made while the preliminary injunction in Peyton v. Scannell was in force. The deed was executed after the injunction was dissolved. Counsel have not cited any authority to this precise point,, and we shall not discuss the question at any considerable length. The cases all agree with those cited by the plaintiff, that a sale under such circumstances was a violation of the injunction, and that, pending the injunction, Massett might have been punished therefor as for a contempt, and that during the same time both the execution and sale might, upon proper proceedings, have been set aside. In many cases of sale or transfer of property in disregard of an injunction issued at the instance of a judgment creditor, the defendant has been fined to the extent of the judgment and costs. The Court, we apprehend, would not be so exact in measuring the penalty, which is usually imposed for the benefit of the injured party, if he-still retained his original security for the payment of his judgment, notwithstanding the sale by the defendant, as surely would be the case if the sale was void. Nor would there be any necessity or even propriety in ordering a restoration of the property to its previous condition, if its attempted disposal in violation of the injunction was absolutely void.
We are of the opinion that the sale was not void.
Judgment affirmed.