Englund v. Lewis

25 Cal. 337, 1864 Cal. LEXIS 43

• Court: California Supreme Court
• Decided: July 1, 1864
• Status: Published

Opinions

By the Court, Sanderson, C. J.

This action was brought to enjoin a Sheriff’s sale of a certain house and lot upon which the defendant Lewis claimed a judgment lien by virtue of the two hundred and fourth section of the Practice Act. The facts disclosed by the record are substantially as follows: Lewis commenced an action in the District Court of Yuba County against Covillaud and Nye in 1859 to recover judgment against them for an amount of money claimed to be due to him, and also to enforce a vendor’s lien, upon certain real estate in the City of Marysville belonging to Covillaud, and to obtain an order of sale thereof to satisfy the judgment that he might recover. On the 9th of May, I860, he recovered judgment for four thousand three hundred and twenty-three dollars and five cents, and also obtained a decree foreclosing his vendor’s lien and directing the sale of the real estate for the satisfaction of the judgment. This judgment was docketed on the 14th of May, 1860. Within the statute time Covillaud and Nye filed and gave notice of motion, and filed their statement, for a new trial. Afterwards, on the 17th of November, 1860, their motion for a new trial was overruled by the Court. Covillaud and Nye, within the statute time, gave notice of appeal to the Supreme Couid; from the judgment against them, and from the order overruling their motion for a new trial. They also, in proper time, executed and filed their undertaking on appeal, having first applied to the Judge of the Court for and obtained an order, under section three hundred and fifty-two of the Practice Act, fixing the amount of the undertaking at two thousand dollars, to stay waste and secure the value of the use and occupation of the premises ordered to be sold, and to pay any deficiency remaining unpaid upon said judgment, etc. The appeal thus perfected was passed upon by the Supreme Court on the 20th of December, 1862. The Court affirmed the money judgment, but reversed the order of sale or so much of the judgment as established a vendor’s lien and directed a sale of the real estate. (Lewis v. Covillaud, 21 Cal. 178.) The remittitur from the Supreme Court was filed in the Court below by Lewis on the 9th of January, 1863, when the judgment in that Court was modified so as to conform to the judgment of the Supreme Court. On the 20th of February, 1863, execution was issued upon the judgment so modified, and was afterwards levied upon the house and lot described in the complaint and belonging to the plaintiff, Englund.

At the time of the docketing of the Lewis judgment, on the 14th of May, 1860, neither Covillaud nor Nye, the judgment debtors, had any interest in this house and lot. One Levy was the owner of the premises. Nye purchased them of Levy on the 11th of June, 1861, more than a year after the docketing of Lewis’ judgment. At the time he purchased, Nye was a married man and the head of a family. He had no residence of his own ; he took possession of the premises, with his family, some ten or twelve days after he purchased, and as soon as he could get possession. Nye continued to reside upon the premises until the 23d of August, 1861, when he and his wife filed their declaration claiming the premises as a homestead. From that time Nye and family continued to reside upon the premises until the 19th of July, 1862, when, for a consideration of two thousand dollars, they conveyed the same to plaintiff, who took the possession thereof.

At the time this action was commenced a temporary injunction was granted, which was dissolved on the final trial, the Court below holding that the judgment in Lewis v. Covillaud and Nye was a valid and subsisting lien under the two hundred and fourth section of the Practice Act, upon the house and lot of the plaintiff at the time of the issuing and levy of the execution thereon, and that the defendant Lewis had a right to sell the premises to satisfy his judgment. From that judgment the plaintiff appeals.

Before entering upon the discussion of the various questions involved in this case it is important that the nature and character of the judgment which was rendered in Lewis v. Covillaud and Nye should be definitely settled. That judgment was rendered and docketed prior to the amendments of the two hundred and forty-sixth section of the Practice Act in 1860 and 1861, and its character and legal effect in all respects must be determined by the law as it stood prior to that time. The judgment, after the usual recitals, provides as follows: ■“ The Court, being sufficiently advised in the premises, orders, adjudges and decrees that said plaintiff do have and recover from said defendants the sum of three thousand two hundred and five dollars, with interest thereon from the 12th day of February," 1859, amounting in the agrégate to the sum of four thousand one hundred and sixty dollars and fifty cents, and that said sum draw interest from the date thereof at the rate of two per cent per month until paid; and also for the sum of one hundred and fifty-two- dollars and twenty-five cents costs, to be taxed in this action, including the sum of ten dollars and thirty cents costs taxed in the Burlingame suit.

“ It is therefore ordered, adjudged and decreed that judgment be and the same is hereby rendered and entered up in' favor of the plaintiff, Joseph E. R. Lewis, and against the defendants, Charles Covillaud and M. C. Rye, for the sum of four thousand one hundred and sixty dollars and fifty cents, and that said sum draw interest from the date thereof until paid at the rate of two per cent per month, and for the further sum of one hundred and sixty-two dollars and twenty-five cents, costs of suit,” etc. The judgment then proceeds in the form of a decree in equity, under the old chancery practice, establishing a vendor’s lien and providing for its enforcement in the usual manner.

Under our system of practice there is but one form of action “ for the enforcement or protection of private rights, and the redress or prevention of private wrongs,” and in a proper case legal and equitable relief may be had in the same action. The result in such cases is a judgment with a twofold aspect, one looking to the legal and the other to the equitable relief. Hence it has been held that in foreclosure cases a formal judgment in personam may be rendered against the defendants for the amount found due, with a provision for its enforcement against the property upon which the lien is established. (Rollins v. Forbes, 10 Cal. 299; Rowland v. Leiby, 14 Cal. 156 ; Chapin v. Broder, 16 Cal. 422.) In Rowland v. Leiby, Mr. Chief Justice Field said: “ In this State parties are at liberty to adopt in the foreclosure of mortgages the course pursued under the old chancery system, and take a decree adjudging the amount due upon the personal obligation of the mortgagor, and directing a sale of the premises and the application of the proceeds to its payment, and apply, after the sale, for the ascertainment of any deficiency, and execution for the same; or they may take a formal judgment for the amount due in the first instance. In the latter case the proceeds can be applied by the officer making the sale immediately upon the judgment, and no further proceedings will be necessary on the part of the Court to ascertain the deficiency.”

The appellant contends that the judgment under consideration is in accordance with the latter form above described, and the respondents contend that it is in accordance with the former. Counsel for respondents seem to overlook one of the consequences of their theory, which would, if their theory is to prevail, prove fatal to their case.

The respondents seek to establish a lien under the judgment ’ in question. If the judgment has the form which they .claim for it, the docketing thereof created no lien, according to the rule in Chapin v. Broder. In that case the Court said: “ We have held in reference to this section (246 of the Practice Act) that in actions of foreclosure its effect was to authorize a personal judgment against the mortgagor, in addition to the relief usually granted in such cases. Where such a judgment is rendered, there is no doubt that when docketed it becomes a lien in accordance with the statute. It is obvious, however, that nothing but a judgment establishing a definite personal liability can have this effect. A mere contingent provision, referring to no particular amount, and in abeyance until the contingency is determined, is not within the meaning of the statute. It may become a valid and perfect judgment, but until the amount to be recovered is ascertained and fixed no effect can be given to it as a lien.

“In the present case, the provisions in question were of this character, and no general lien was acquired by the' docketing of the judgment. It is no answer to say that the judgments contained a statement of the amount due. There was no personal judgment for this amount, nor was there anything in the nature of a personal judgment beyond the mere direction for the issuance of an execution in the event of the insufficiency of the mortgage property to pay the debt. The whole matter was contingent, indefinite and uncertain, and so long as this continued to be the case no effect whatever could be given to it.” Under the doctrine in that case, the respondent Lewis never acquired a lien upon the premises in question, if his judgment is nothing more than the old chancery judgment in foreclosure cases; but, in our opinion, the judgment is a personal judgment for the amount of the debt, with the usual relief in equity superadded. Such being the case, it became a lien when docketed, as provided in the two hundred and fourth section of the Practice Act.

The first point made by counsel for appellant is as to the effect of ah appeal upon a judgment lien, and it is claimed that the two years during which the lien is allowed to continue commences from the -docketing of the judgment, notwithstanding' an appeal may have been taken, and notwithstanding an undertaking on appeal may have been given sufficient to stay all proceedings upon the judgment in the Court below, pending the appeal.

And, in the second place, it is claimed that if an appeal, with a sufficient stay-bond, operates to postpone or suspend and continue the lien, so that the two years do not commence, to run until , after the date of the remittitur from this Court, no stay-bond sufficient for that purpose was given in the case of Lewis v. Covillaud and Nye.

1. 'íhe first proposition has been argued with much learning and ability by counsel upon both sides, but under the view which we have taken of the question, it becomes unnecessary to follow the line of argument which has been adopted.

As long as eight years ago this question came before the late Supreme Court, in the case of Dewey v. Latson, 6 Cal. 130, 'and after mature consideration was there decided adversely to the appellants. In that case the only point made was the same as that now under consideration, and the Court said: “ The first reading of the Act would seem to be conclusive in favor of the appellant, but when we come to examine the legal solecism of allowing a party by his own motion thus to defeat the remedy which the law has given the creditor, and to destroy the security furnished, which must inevitably result if the construction contended for be sustained, we are necessarily put upon inquiry as to the intention of the Legislature and the possibility of escape from such absurd consequences.

“The obvious intention was to charge the estate of the judgment debtor, and to give the creditor two years to make his money. The statute intended that this time should run from the date of the judgment or period, at which the plaintiff was in a situation to take out execution and pursue his remedy to final satisfaction. By the defendant’s own act the force of that judgment has been suspended, and the lien, which is merely an incident, must share a like fate. It would be absurd to say that a lien attached upon a judgment and expired by its own limitation while the judgment was still in fieri, and could not be prosecuted to full fruition.

“ The defendant would thus be able to abridge, if not destroy the lien, and in all cases where a period of more than two years intervened between the date of the judgment in the Court below and the final judgment in this Court, to substitute personal for that security which the law gives the successful party. It was never intended that a party, by prosecuting a frivolous appeal, should thus be allowed to take advantage of his own wrong.”

The case of Dewey v. Latson has never been overruled. On the contrary, the construction of the two hundred and fourth section of the Practice Act came before that Court again only two years later, in the case of Isaac v. Swift, 10 Cal. 71, and again, two years thereafter, in the case of Chapin v. Broder, 16 Cal. 403.

In the former case, Dewey v. Latson was cited by counsel and brought directly to the attention of the Court. Had the Court become dissatisfied with the rule established in Dewey v. Latson, an opportunity thus early was afforded in Isaac v. Swift to overrule that case, yet in the opinion of the Court no word of dissatisfaction is found. In Chapin v. Broder, the case of Dewey v. Latson is expressly mentioned, commented upon and explained by Mr. Justice Cope, who delivered the ojfinion of the Court, without expressing any dissent from the rule there established. On the contrary, in his opinion delivered on the petition for a rehearing, he clearly shows that the doctrine iñ Chapin v. Broder does not conflict with that announced in Dewey v. Latson, but on the contrary is in harmony therewith. Thus, whether correct or not, the construction of the section of the Practice Act in question, as given in Deioey v. Latson, has remained undisturbed for more than eight years, during which time it has been the rule of decision in the Courts and of conduct with the people. Great interests may have been acquired under the law thus expounded which might be prejudiced by a contrary exposition at this late day. Where such is the case no change should be made by the Courts, but if a change be demanded a resort to the Legislature should be had. Ruinous consequences might follow a change resulting from judicial tergiversation by reason of its retroactive effect, but none such can result from legislative interposition. Without, therefore, discussing the merits of the question, we rest our decision solely upon the doctrine of stare decisis, holding the present to be a case to which that doctrine ought to be applied.

It follows that where an appeal has been taken and a bond sufficient to stay proceedings upon the judgment pending the appeal has been given, the lien created by the two hundred and fourth section of the Practice Act remains a valid and subsisting lien upon all the real property of the judgment debtor, not exempt from execution in the county where the judgment is docketed, owned by him at the date of the docketing of the j udgment, or subsequently acquired, until such lien expires, and that the same does not expire until the end of two years from and after the date of the remittitur from this Court.

2. The next point made by counsel for appellant is to the effect (assuming the law to be as we have declared) that no appeal bond was given in Lewis v. Covillaud and Nye sufficient to stay proceedings on the personal judgment during the pendency of the appeal, and that as a consequence Lewis was not prevented by the appeal from proceeding at any time to enforce his money judgment by execution, and if so, that the lien expired at the end of two years from the time the judgment was docketed. If it be true, as contended, that the bond given on appeal was not sufficient to stay proceedings on the personal judgment, it follows, under the rule laid down in Chapin v. Broder, that the lien was not extended by the appeal beyond two years from the docketing of the judgment.

The three hundred and fifty-second section of the Practice Act, under which the undertaking was given, provides that, “ If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the Judge of the Court by which the judgment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgage premises and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.”

This section is double, and provides for two distinct undertakings upon two distinct kinds of judgments, one directing a sale of real property, and the other directing a delivery of the possession of real property. In a case where the judgment directs a sale, the undertaking need only provide security against waste, unless such sale is of mortgaged premises and the judgment provides for the payment of a deficiency, in which case it must provide for the payment of such deficiency. In such a case no provision need be inserted in the undertaking for the payment of the value of the use and occupation of the premises pending the appeal, for the obvious reason that the judgment creditor does not become entitled to the value of the use and occupation until after a sale has been made. (Practice Act, Sec. 236.) Where the judgment directs a delivery of the possession of real property the undertaking must provide against waste and for the payment of the value of the use and occupation, and for those two only, for there can be, in such a case, no question as to deficiency. (Whitney v. Allen, 21 Cal. 233.) Where the sale is directed for the purpose of satisfying any lien other than a mortgage lien, the undertaking need not provide for the payment of any deficiency which the judgment may direct. To this extent the statute discriminates in favor of mortgage and against all other liens. The lien in Lewis v. Covillaud and Nye was not a mortgage, but a vendor’s lien. Hence, the undertaking in question is good only as an undertaking for costs and waste; beyond that it was not required by law, and was utterly void. Was such an undertaking sufficient to stay all proceedings upon the judgment in question ?

We are aware that^an impression has prevailed to a considerable extent among the members of the profession to the effect that in foreclosure cases, regardless of the character of the lien, no undertaking on appeal is. required except for •costs, as provided in section three hundred and forty-eight, and for waste, use and occupation and deficiency, as provided ■in section three hundred and fifty-two; but from a careful examination of the several sections of the Practice Act touching undertakings on appeal it is manifest that this impression is without a substantial foundation. The impression proceeds upon the theory that the lien remains a subsisting security for the payment of the Money demand, but this is true only where there is no contest as to the validity of the lien; for if the contest be as to the validity of the lien, and the appellate Court finally decide against its validity, the security which it is supposed to have afforded is gone, or rather it has never had an existence. The only color which the statute gives to this theory is found in the three hundred and fifty-second section. By providing for an undertaking against waste and for the payment of any deficiency arising upon the sale, that section seems to proceed upon the theory that the land, if no waste be committed, is security for the debt to the extent of its value, and that no further security is needed except as to a deficiency, should one arise upon the sale. Such would undoubtedly be the case where the appeal makes no attack upon the validity of the lien, but the contrary is the result where the contest is as to the validity of the lien if the appellate Court decides against it.

But to this seeming theory of the three hundred and fifty-second section, the three hundred and fifty-fourth section is opposed. That section provides that “ the undertakings prescribed by sections three hundred and forty-eight, three hundred and forty-nine, three hundred and fifty, and three hundred and fifty-two, may be in one instrument or several, at the option of the appellant.” Thus the Legislature seems to have contemplated that a case might arise where the appellant would be required to give several or all of the undertakings provided for in cases of appeal, according to the character of the judgment and the extent of the appeal. This view is in harmony with that provision of the statute which enables a party to appeal from the whole or any specific part of the judgment, (Practice Act, sec. 337,) and with that which limits the stay of proceedings to the judgment or order appealed from, and allows the Court to proceed upon any other matter included in the action and not affected by the judgment or order appealed from. (Sec. 353.)

Our conclusions are, that where there is a money judgment only, the undertaking, in order to stay proceedings, must be in double the amount of the judgment1; and if in addition to a money judgment there be a judgment for the delivery of documents, or the execution of a conveyance, or a sale of real property, or for the delivery of real property, an additional bond or bonds, as the case may be, must be given in order to stay proceedings upon each branch or part of the judgment, and that if there be a part or branch of the judgment as to which no bond is given, proceedings upon such branch or part are not stayed.

In the case of a judgment which directs the execution of a conveyance or other instrument, of course no bond, except for the money branch of the judgment, if such there be, is required, the appellant being required to execute and deposit with the clerk the conveyance or other instrument instead of the bond exacted in other cases.

In foreclosure cases, where there is no judgment in personam, but only a judgment in accordance with the old chancery practice, a bond for costs and a bond for waste and deficiency would be sufficient; but where the judgment is in the form authorized by our practice, as decided in Rollins v. Forbes, Rowland v. Leiby, and Chapin v. Broder, and it is desired to stay proceedings as to the whole judgment, there must be a bond for costs, a bond in double the amount of the personal judgment and a bond for waste and deficiency, all of which may be included in one instrument or several, at the option of the appellant. In the ¡present instance the appeal was from the whole judgment, but no bonds were given except for costs, waste and deficiency. The first was sufficient for the puipose of perfecting the appeal, and the second was sufficient for the purpose of staying proceedings upon that branch of the judgment which directs a sale of the premises in question, but was not sufficient to stay proceedings upon that branch which gives a personal judgment against the defendants, and Lewis might at any time have proceeded by execution to enforce the collection of the money.

This disposes of the case and makes it unnecessary to consider the homestead question presented by the record.

As to the point made by the respondents to the effect that a sale of the premises, if no lien exists, would not create a cloud upon the plaintiff’s title, we think the facts of the case bring it within the rule announced in Shattuck v. Carson, 2 Cal. 588; in Guy v. Hermance, 5 Cal. 73; in Alverson v. Jones, 10 Cal. 11; and in Pixley v. Huggins, 15 Cal. 127.

The judgment is reversed and the Court below directed to render a judgment in favor of the plaintiff, in conformity with the prayer of the complaint.