not been revived, is so far extinguished that no action can be maintained on it.187 § 1380. Effect of judgment lien-Death of party to judgment. —If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment shall not be a lien on the real property of the deceased party, but shall be payable in the course. of administration on his estate.188 The continuance of the name of a deceased plaintiff, instead of that of his executor, in a judgment rendered after the substitution, is an error of form only, and does not make the judgment void.189 The death of an appellant after argument of his case on appeal does not constitute any ground for delaying a decision, or a departing from the ordinary course of procedure, except as to the entry of the judgment which may be rendered. The entry should be of a day anterior to the appellant's death. The rule is different if the death occurs previous to the argument. In that event, further proceedings can only be had upon leave given after suggestion of the death is made.190 § 1381. Equitable liens.-The lien of a judgment against the holder of the legal estate is postponed in equity to an equitable right previously acquired.191 Where a creditor has obtained judgment, and caused execution to be delivered to the sheriff, and the same has been returned unsatisfied for the want of property, he does not acquire any lien by a bill in equity to discover assets upon his debtor's property.192 Where judgment and decrees in equity of state courts are by state laws liens upon land, decrees in admiralty of United States courts have the same character, and are equally binding. 193 1382. Extension of lien.-The issuing and levying of an execution before the lien of the judgment upon which the execu 187 Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630. 188 Cal. Code Civ. Proc., § 669. 189 Gregory v. Haynes, 21 Cal. 443; Stoetzell v. Fullerton, 44 Ill. 108. 190 Black v. Shaw, 20 Cal. 68. 191 Brown v. Pierce, 7 Wall. 205, 19 L. Ed. 134. In what cases are judgments and decrees of United States courts liens upon real estate, see Ward v. Chamberlain, 2 Black, 430, 17 L. Ed. 319. 192 Chase v. Searles, 45 N. H. 511. 193 Ward v. Chamberlain, 2 Black, 430, 17 L. Ed. 319. tion issued expires will not operate to prolong the lien of the judgment beyond the time limited in section 204 of the code. It required express words of the statute to create the lien, and it equally requires express words to continue it beyond the time specified. 194 The Washington statute of 1877, providing for the extension of the lien of a judgment was repealed by section 3319 of the code, 195 § 1383. Property subject to the lien. The lien of a judgment is purely the creature of statute; and when the statute says "property exempt from execution," it means property not subject to forced sale. The homestead is not subject to such sale, either on execution or any other final process of the court. 196 As the lien of a judgment is purely statutory, neither its existence nor commencement can be proved by parol.197 Docketing a judgment against a mortgagor after he has conveyed his equity of redemption creates no lien on the property.198 The lien of an unrecorded mortgage given to secure a loan is created by the mere execution and delivery of the mortgage, and takes precedence over an attachment or judgment lien obtained after its execution. 199 Since the amendment of 1895 a conveyance will not stand against any judgment affecting the title, unless recorded prior to the record of notice of the action.199a The lien of a judgment of foreclosure against a husband is subject to the interest of the wife, whether arising from a tenancy in common with the husband or out of a right of dower. 200 A judgment rendered against a devisee pending administration of the estate becomes a lien upon that devisee's interest in any real estate of the estate.201 Property paid for by a parent, and taken in the name of a child, with no evidences of a trust, is subject to lien of judgment against the child.202 194 Isaac v. Swift, 10 Cal. 71, 70 Am. Dec. 698. 195 Tacoma Nat. Bank v. Sprague, 33 Wash. 285, 74 Pac. 393. 196 Ackley v. Chamberlain, 16 Cal. 181, 76 Am. Dec. 516; Bowman v. Norton, 16 Cal. 213. 197 Eby v. Foster, 61 Cal. 282. 198 Watt v. Wright, 66 Cal. 202, 5 Pac. 91. 199 Bank of Ukiah v. Petaluma Sav. Bank, 100 Cal. 590, 35 Pac. 170. 199a Cal. Civ. Code, § 1214, as amended March 12, 1895, Stats. of 1895, p. 50. 200 Manuel v. Turner, 36 Mont. 512, 93 Pac. 808. 201 Martinovich v. Marsicano, 137 Cal. 354, 70 Pac. 459. 202 Woodhurst v. Cramer, 29 Wash. 40, 69 Pac. 501. § 1384. Release of lien.-The payment by a judgment debtor of the judgment, after a sheriff's sale, extinguishes the lien; and the fact that he takes a transfer of the certificate and the sheriff's deed, instead of a certificate of redemption, cannot divest the lien of a subsequent judgment.203 The perfecting an appeal does not release the lien acquired by docketing the judgment.204 But if the enforcement of the judgment be stayed on appeal by a sufficient undertaking, as provided in the code, the lien ceases. 205 § 1385. Satisfaction of judgment-By levy under execution.The satisfaction of a judgment of record may be done by the judgment creditor or his attorney by indorsement on the margin of the record, or by acknowledgment in the manner of a conveyance.206 The attorney may do the same upon payment, and not otherwise.207 A levy under execution on sufficient property to satisfy it is a satisfaction of the judgment.208 Without making an attack upon the judgment, equity proceedings cannot be had to enjoin the execution.209 The return of a sheriff indorsed on an execution placed in his hands for collection, that the execution is satisfied by promissory notes received for the amount due on it, is not evidence of the satisfaction of the judgment on which it was issued, nor can it be admitted in evidence as tending to prove a satisfaction of the same.210 The plaintiff in an execution may accept of promissory notes by a special agreement, as an absolute payment of the same, but the agreement must be proved by testimony other than the sheriff's certificate.211 § 1386. Satisfaction by part payment.-A payment of part of the amount due upon a money judgment, under an agreement that it shall operate as satisfaction in full, will not discharge the judgment.212 The contrary is now, however, the rule in Cali 203 McCarty v. Christie, 13 Cal. 79. 206 Cal. Code Civ. Proc., § 675; Ariz. Civ. Code, par. 286; Idaho Rev. Codes, 4461; Mont. Rev. Codes, § 6811; Nev. Comp. Laws, § 3305; N. Mex. Comp. Laws, § 2685; N. Dak. Code Civ. Proc., § 5497; Or. B. & C. Codes, 2685; S. Dak. Code Civ. Proc., §§ 309-327; Utah Rev. Stats., §§ 115, 3207; Wash. Bal. Codes, § 4702. 207 Cal. Code Civ. Proc., § 286. 208 People v. Chisholm, 8 Cal. 30. See, also, Mulford v. Estudillo, 23 Cal. 95; Cal. Code Civ. Proc., § 675. 209 Jones v. Messenger, 40 Colo. 37, 90 Pac. 64. 210 Mitchell v. Hockett, 25 Cal. 542, 85 Am. Dec. 151. 211 Id. See Smith v. Reed, 52 Cal. 345. 212 Deland v. Hiett, 27 Cal. 611, 87 Am. Dec. 102. fornia.213 The receipt of a clerk of a court in which a judgment is docketed is not admissible as evidence to show receipt of money by the judgment creditor.214 A judgment cannot be set off against an action of conversion, but defendant's remedy is by bill in equity or other proceeding to offset one judgment against the other.215 A release of one joint judgment debtor, "so far as the same can be done without releasing" the other from paying the balance, does not discharge the latter. 216 Satisfaction of a judgment in unlawful detainer suit does not release liability on the appeal-bond, conditioned for payment of rents during the appeal.217 Payment of a judgment operates as an irrevocable discharge, after which the judgment cannot be restored by any subsequent agreement, nor kept on foot to cover new and distinct. engagements.218 One plaintiff is only authorized to enter satisfaction of the judgment without the consent of his co-plaintiff on payment of the whole amount of the judgment.219 If satisfaction of a judgment is entered without notice to the judgment creditor, the latter has his remedy by motion to set aside the order and entry of satisfaction.220 Injunction will lie to restrain the enforcement of a satisfied judgment.221 § 1387. Revival of judgment.-In all cases, the judgment may be enforced or carried into execution after the lapse of five years. from the date of its entry, by leave of the court, upon motion, or by judgment for that purpose founded upon supplemental pleadings.222 This section applies to all judgments not barred in the year 1895.223 Notice of the motion for issuance of execution need not be given.224 Granting the motion is a matter of discretion with the court.225 Execution may issue on a judgment 213 See Cal. Civ. Code, §§ 15211543. See, also, Fuller v. Baker, 48 Cal. 632. 214 Matusevitz v. Hughes, 26 Mont. 212, 66 Pac. 939, 68 Pac. 467. 215 Potter v. Lohse, 31 Mont. 91, 77 Pac. 419. 216 Barnum v. Cochrane, 139 Cal. 494, 73 Pac. 242. 217 Carmack v. Drum, 32 Wash. 236, 73 Pac. 377, 785. 218 Estate of Baby, 87 Cal. 200, 22 Am. St. Rep. 239, 25 Pac. 405. 219 Haggin v. Clark, 61 Cal. 1. 220 Thomas V. Rock Island etc. Min. Co., 54 Cal. 578. 221 Thompson v. Laughlin, 91 Cal. 314, 27 Pac. 752. 222 Cal. Code Civ. Proc., § 685. 223 Doehla v. Phillips, 151 Cal. 488, 91 Pac. 330. 224 Harrier v. Bassford, 145 Cal. 529, 78 Pac. 1038; Bryan v. Stidger, 17 Cal. 270. 225 Wheeler v. Eldred, 121 Cal. 28, 66 Am. St. Rep. 20, 53 Pac. 431, 137 Cal. 37, 69 Pac. 619. in foreclosure within five years and six months from the date of its entry, the six months being the time allowed for appeal.226 This section does not authorize an independent action after five years on a judgment rendered in a justice court.227 The administratrix of the judgment creditor,228 or his assignee,229 may enforce a judgment more than five years old by a motion for execution. FORMS OF JUDGMENTS. § 1388. Judgment by the court. [TITLE.] Form No. 442. ... This cause came on regularly for trial on the . . . day of . . 19 .., E. F., Esq., appearing as counsel for the plaintiff, and G. H., Esq., for the defendant. A trial by jury having been expressly waived by the counsel for the respective parties, the cause was tried before the court sitting without a jury, whereupon J. K. and L. M. were examined as witnesses on the part of the plaintiff, and N. O. and P. Q. were examined as witnesses on the part of the defendant, and the evidence being closed, the cause was submitted to the court for consideration and decision; and after due deliberation thereon, the court delivers its findings and decision in writing, which is filed, and orders that judgment be entered in accordance therewith. Wherefore, by reason of the law and the finding aforesaid, it is ordered and adjudged that A. B., the plaintiff, do have and recover of and from C. D., the defendant, the sum of . . . dollars, with interest thereon at the rate of . . . per cent per month, from the date hereof until paid, together with said plaintiff's costs. and disbursements incurred in this action, amounting to the sum of . . . dollars; and that said sum of . . . dollars and said interest be paid by said defendant in gold coin of the United States. Judgment rendered. . ., 19 .. 226 Harrier v. Bassford, 145 Cal. 529, 78 Pac. 1038. 227 John Heinlen Co. v. Cadwell, 3 Cal. App. 80, 84 Pac. 443. Judge. 228 Weldon v. Rogers, 151 Cal. 432, 90 Pac. 1062. 229 La Fitte v. Salisbury, 43 Colo. 248, 95 Pac. 1065. |