versed. 149 The court will presume after a verdict that facts imperfectly alleged in a complaint have been proved, but it will not presume that a material fact, not at all stated, has been proved.150

§ 1373. Gold-coin judgment. In an action on a contract or obligation in writing for the direct payment of money, made. payable in a specified kind of money or currency, judgment for the plaintiff, whether the same be by default or after verdict, may follow the contract or obligation, and be made payable in the kind of money or currency specified therein; and in an action against any person for the recovery of money received by such person in a fiduciary capacity, or to the use of another, judgment for the plaintiff, whether the same be by default or after verdict, may be made payable in the same kind of money or currency so received by such person.151 If the contract be to pay in gold and silver coin, the judgment must not be for gold coin only.152 The allegation that a contract was payable in a specified kind of money is an allegation of a material fact, and may be traversed.153 A contract that if the obligation is not paid in gold coin, the debtor will pay the difference between the value of gold and currency, is not a contract of which specific performance in gold coin can be decreed. 154 Upon an accounting, a promise in writing by the defendant to pay the sum found due in gold coin justifies a judgment in gold coin. 155 In an action to recover possession of personal property, the plaintiff may recover its value in United States legal-tender notes. One unlawfully converting property does not sustain any injury, if the jury, in an action to recover possession of the same, find its value in United States legal-tender notes. 156

§ 1374. Costs and interest in gold coin. Where a contract is made payable in a specific kind of money, the judgment enforcing

149 Walker v. Hauss-Hijo, 1 Cal. 186. 150 Barron v. Frink, 30 Cal. 486. 151 Cal. Code Civ. Proc., § 667. 152 Burnett v. Stearns, 33 Cal. 469. 153 Wallace v. Eldridge (No. 2), 27 Cal. 499.

154 Lane v. Gluckauf, 28 Cal. 289, 87 Am. Dec. 121. See, as to bill of exchange payable in gold coin, Bank of Prince E. I. v. Trumbull, 53 Barb. 459.

155 Carey v. Philadelphia etc. Petroleum Co., 33 Cal. 695. See Kellogg v. Sweeney, 46 N. Y. 291, 7 Am. Rep. 333; Independent Ins. Co. v. Thomas, 104 Mass, 192; Chesapeake Bank v. Swain, 29 Md. 506; Watson v. San Francisco etc. R. R. Co., 50 Cal. 523; North Pacific R. R. Co. v. Reynolds, 50 Cal. 280.

156 Tarpey v. Shepherd, 30 Cal. 180.

it may enforce the payment of costs and interest in the kind of money mentioned in the contract.157 But it is error for the court to adjudge the costs in an action for forcible entry and detainer to be paid in gold coin.158

§ 1375. Ejectment. In ejectment, if the court finds the value of the use and occupation of the premises in both gold and currency, a general judgment may be rendered for the currency value.159 As a matter of law, there is no possible difference in value between gold coin and legal-tender notes, nor can evidence be received to prove a difference. 160 Where the kind of money received by the defendant is not in issue, and he has received the same in a fiduciary capacity, or to the use of another, it is proper for the court, upon a verdict for the amount of money, to order judgment in the kind of money received by him.161

§ 1376. Goods sold.-If the complaint avers a contract in writing by defendant to pay for goods sold in gold coin, made before the sale, and such contract is made after suit commenced, but dated before the sale, judgment should be for gold coin.162

§ 1377. Lien of judgment.-From the time the judgment is docketed, it becomes a lien upon all the real property of the judgment debtor (but not upon the real property standing in his wife's name),163 not exempt from execution, in the county, owned by him at the time, or which he may afterwards acquire, until the lien ceases.164 The lien continues for five years, unless the en'forcement of the judgment be stayed on appeal by the execution of a sufficient undertaking as provided in the code, in which case the lien of the judgment, or any lien by virtue of an attachment that has been issued and levied in the action, ceases. 165 Where a judgment did not become a lien on real property for failure to state the time when it was docketed in the lien-book, the filing of a transcript of such lien-docket in another county was ineffectual

157 Carpentier v. Atherton, 25 Cal. 569.

158 More v. Del Valle, 28 Cal. 170. 159 Carpentier v. Small, 35 Cal. 346. 160 Id.; Poett v. Stearns, 31 Cal. 78.

161 Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657.

162 Meyer v. Kohn, 29 Cal. 278. See Noonan v. Hood, 49 Cal. 293.

163 Robinson v. Gumaer, 43 Colo. 310, 95 Pac. 935.

164 Cal. Code Civ. Proc., § 671, as amended 1895.

165 Id. See Riley v. Nance, 97 Cal. 203, 31 Pac. 1126, 32 Pac. 315.

to create a lien on land in that county.166 In Oregon, the judg-
ment of a court of record becomes a lien on the real estate of the
debtor from the first day of the term in which it is rendered, and
does not become dormant for five years from the date of its .
rendition.167 Quare: Upon affirmance of the judgment by the
supreme court, and remittitur to the superior court, is the lien
of the judgment revived or renewed, or does it exist at all? or
must the judgment creditor rely solely upon his execution and
upon the appeal-bond? There would seem to be no question that
during the pendency of the appeal the judgment debtor may alien
his real estate, and the purchasers take it discharged of the lien,
inasmuch as the lien ceases upon filing the proper bond; but
whether a new lien is created upon docketing the judgment of
the appellate court is not clear. The lien of a judgment appealed
from runs from the date of the final judgment rendered by the
supreme court. 168
A lien on real estate commences to run from
the docketing of the judgment, unless the judgment is stayed by
an order of the court, pending a motion for new trial or a stay-
bond on appeal.169 In foreclosure cases, where there is a judg
ment in personam, and also a judgment enforcing a lien and
directing a sale of the property, and the undertaking on appeal
only stays the sale and provides for costs, the lien of the personal
judgment on the judgment debtor's property in the county where
it is docketed attaches at the time it is docketed, and expires at
the end of two years from the time the personal judgment is dock-
eted.170 If the plaintiff does obtain a personal judgment, a decree
enforcing the lien and directing a sale of the property does not
become a judgment lien on the other property until after sale
and deficiency docketed, and then only for the deficiency.171 A
transcript of the original docket, certified by the clerk, may be
filed with the recorder of any other county; and from such filing,
the judgment becomes a lien upon all the real property of the
judgment debtor not exempt from execution in such county,
owned by him at the time, or which he may afterwards, and
before the lien expires, acquire. The lien continues for two years,

166 Wood v. Fisk, 45 Or. 276, 77 Pac. 128, 738.

167 Cramer v. Iler, 63 Kan. 579, 66 Pac. 617.

168 Whitworth v. McKee, 32 Wash. 83, 72 Pac. 1046.

169 Barroilhet V. Hathaway, 31 Cal. 395, 89 Am. Dec. 193; Eby v. Foster, 61 Cal. 282.

170 Englund v. Lewis, 25 Cal. 350. 171 Id.; Culver v. Rogers, 28 Cal. 520; Chapin v. Broder, 16 Cal. 421.

unless the judgment be previously satisfied or the lien be otherwise discharged.172 The fact that a lien has existed and expired in another county makes no difference. The lien commences upon filing the transcript in the recorder's office, and continues two years. 173

A judgment is not a lien on a leasehold estate acquired by the debtor under a lease executed subsequent to the judgment.174 A judgment docketed against a mortgagor after sale of the real estate under foreclosure suit, but before expiration of the period. for redemption, becomes a lien on the property, subject to defeat by execution and delivery of a sheriff's deed. 175 A deed being placed in escrow on sale of land, such land to the extent of the unpaid purchase price is subject to a judgment lien against the vendor, 176

§ 1378. Priorities of judgments.-General judgment creditors cannot acquire priorities of lien on lands covered by mortgages over judgments for the enforcement of the mortgage liens, for failure of the mortgage creditors to issue process for the enforcement of their judgments in one year after rendition.177 Where a master's deed created a passive trust in favor of certain judgment debtors, which by the statute of uses was converted into an estate in fee in the cestui que trust, the lien of the judgment which attached to such property on the filing of the deed for record was superior to a parol secret lien existing between the cestui que trust and the trustee; and when a judgment creditor had no notice of an attorney's intention to claim a lien on certain lands belonging to the client at the time such judgment creditor filed his transcript of the judgment, the lien acquired through the transcript is superior to the attorney's right to a lien. 178

In some states, a distinction, or supposed distinction, is made. between the general lien of a judgment as existing before levy of execution and the specific lien acquired by levy,179 but in

172 Cal. Code Civ. Proc., § 674. 173 Donner v. Palmer, 23 Cal. 45. As to recording, etc., see Cal. Civ. Code, §§ 1159, 1165, 1169, 1170.

174 Summerville v. Stockton Milling Co., 142 Cal. 529, 76 Pac. 243.

175 Kaston v. Storey, 47 Or. 150, 114 Am. St. Rep. 912, 80 Pac. 217.

176 May v. Emerson (Or.), 96 Pac. 454.

177 Jackson v. King, 64 Kan. 886, 67 Pac. 1112.

178 Teller v. Hill, 18 Colo. App. 509, 72 Pac. 811.

179 Powell v. Macon, 40 Ark. 544; 2 Freeman on Judgments, § 338; Doavier's Law Dict., title, "Liens."

California there is no room for such a distinction; for the judgment, when docketed, is by statute made a specific lien on all the lands of the judgment debtor, before as well as after levy.180 Where, pending foreclosure of a mortgage, a creditor of the mortgagor recovered and docketed a judgment against him, and thereafter a subsequent grantee of the mortgagor redeemed the property from the foreclosure sale, the judgment creditor was thereupon entitled to enforce his judgment against the land.181

The priority of a judgment lien is not affected when property passes into the custody of the receiver, nor is it impaired by the fact that an execution thereon has not been taken out and levied before the expiration of one year next after its rendition; provided, no other judgments have been rendered against the same judgment debtor before the receiver is appointed.182 The statute providing that a judgment shall cease to operate as a lien on the estate of the judgment debtor when the judgment becomes dormant does not apply to a decree for the sale of specific real property.183 An innocent purchaser from a judgment debtor who receives and conveys the property by her married name takes it free from a judgment docketed against her in her maiden name, and this even though such purchaser knew her as a single woman. 184

§ 1379. Extinguishment of lien.-A judgment which is a lien upon the estate of a judgment debtor prior to his death, and upon which suit is brought against the administrator of the debtor's estate, after his refusal to pay the judgment, is not merged in or destroyed by the judgment obtained against such administrator. 185 Before a judgment is enforced against one secondarily liable, credit must be given for the amount of any property of the judgment debtor primarily liable which has been released from levy by the judgment creditor.186 A domestic judgment in Kansas which has been rendered for more than six years, and upon which no execution has ever been issued, and which has

180 Hibernia etc. Soc. v. London etc. Ins. Co., 138 Cal. 257, 71 Pac. 334.

181 Kaston v. Storey, 47 Or. 150, 114 Am. St. Rep. 912, 80 Pac. 217.

182 Cramer v. Iler, 63 Kan. 579, 66 Pac. 617.

183 Watson V. Keystone Iron Works, 70 Kan. 43, 74 Pac. 269.

184 Huff v. Sweetser, 18 Cal. App. 689, 97 Pac. 705.

185 In re Wiley's Estate, 138 Cal. 301, 71 Pac. 441.

186 Mayberry v. Whittier, 144 Cal. 322, 78 Pac. 16.