Fore v. Manlove

18 Cal. 436, 1861 Cal. LEXIS 225

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

If a judgment be the subject of levy and sale, as appellant contends, the purchaser would only take as assignee. Ho title to the chose in action different from that passing by act of assignment, made immediately by the owner of it, would be communicated by the Sheriff’s sale. A judgment is not a negotiable instrument, as a bill of exchange is, by the law merchant; but is a mere chose in action, vesting an equitable right in the assignee to the° proceeds of it, with a right to the usual and legal means of collecting the amount due on it. But in this case it appears that before the levy and sale, the judgment had been assigned for value by the holder of it to Moore & Welty. Their right first accruing by the assignment of the execution debtor, took precedence of the Sheriff’s assignment subsequently made. The Sheriff sold the interest of the creditor in the judgment; but the title was already gone before the levy. Between two bona fide purchasers of a chose in action not negotiable, the purchaser first in time is prior in right. It does not avail to say that the execution sale carried the legal title and the prior assignment only an equity; the title sold in both cases is precisely the same—there being no difference, so far as affects the quality of the interest conveyed, between a sale made voluntarily by the party himself and a sale made for him by the Sheriff who, in making it, acts as his agent.

Judgment affirmed.