
    [No. 6,876.
    Department No. 2.]
    PORTER v. PICO et al.
    Sheriff's Deed — Execution Sale—Attachment — Relation. — A sheriff’s deed, executed in pursuance of an execution sale, under a judgment rendered in an attachment suit, takes effect from the levy of the attachment. The attachment lien, though merged in the judgment, still exists, so as to confer a priority in the lien of the judgment, and this result is attained, in an indirect way, by applying the doctrine of relation to the series of acts necessary to be done to transfer title to the property attached.
    Attachment — Return—Presumption.— A return upon an attachment, (or other mesne process) that the officer duly levied the same, is defective in not stating the acts done by the officer in making the service; but such a return is prima facie sufficient to show a due execution, though the presumption may be controverted.
    Id.—Id.—Id.—Conflict of Evidence—Findings.—In such a case, where the officer testified that it was his custom to levy the attachment by first posting the attachment, with the notice of levy, upon the land, and afterward filing the same in the Recorder’s office, (being the reverse of the order prescribed by the statute): Held, there was a conflict of evidence, and the finding of the Court, that the attachment was duly levied, was conclusive.
    
      Id.—Irregularity.—The lien of an attachment is not affected by any irregularities in the attachment: but such irregularities are waived by the defendant when he appears, and answers, without taking advantage of them by motion or otherwise.
    Injunction-Cloud upon Title—Execution Sale.—Where a sheriff’s sale, though ineffectual to pass title to a purchaser, would yet be sufficient to cast a cloud upon the plaintiff’s title, a Court of Equity will enjoin the sale.
    Id.— Id.— Id.— Execution — Attachment — Sheriff’s Deed -Ex-Sheriff — Relation.—A sheriff’s deed, made upon an execution sale under a judgment in an attachment suit, conveyed to the plaintiff all the right, title, and interest of the judgment debtor, which he had at the date of the docketing of the judgment, or at anytime thereafter. The defendant, who had obtained judgment in an attachment suit, wherein the attachment was levied upon the same land after the attachment, but before the judgment, in the former suit, caused a special execution to be issued to the ex-Sheriff, (who had levied his attachment) requiring him to sell the interest which the judgment debtor had in the land at the date of the levy of the attachment, field, that the plaintiff’s deed took effect by relation from the date of the attachment, and conveyed to him the interest which the judgment debtor then had, and that the sale under the defendant’s execution would have cast a cloud upon the plaintiff’s title, and was therefore rightly enjoined.
    Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.
    The execution in the defendant’s action, referred to in the opinion, was addressed to D. W. Alexander, late Sheriff of Los Angeles County, and after reciting the levy of the attachment, the recovery of the judgment, and an order of the Court for the issue of the execution, commanded the said Alexander to sell all the right, title, and interest, which the judgment debtor had in and to the land in question at the date of the levy. The writ substantially conformed to the forms given in the New York text books, cited in the appellant’s argument.
    The other facts are stated in the opinion.
    
      Glassell, Smith & Smith, for the Appellants.
    The deed of the Sheriff purports to convey to the plaintiff only the interest which Celis had in the land “ on the 21s ¿ day of April, 1877, or at any time afterward.” Under obvious rules of construction the deed conveyed only what it purported to convey. (Code Civ. Proc. §§ 692, 1855-6-7-8; Civ. Code, §§ 1638-9, 1644; Donahue v. McNulty, 24 Cal. 411; Wiseman v. McNulty, 25 id. 236; Hihn v. Peck, 30 id. 288.)
    
      The point was directly involved in Lamont v. Cheshire, 65 N. Y. 43; S. C. 6 Lans. 234; and was decided in our favor, under provisions of the New York Code identical with ours. (Compare Waite’s N. Y. Code, §§ 237, 289, with Code Civ. Proc. §§ 550, 682.)
    If the plaintiff in Rowland v. Celis desired to sell the interest which Celis had at the date of his attachment, he should have caused (as we did) a special execution to be issued, referring to the attachment, and commanding the Sheriff to .sell the interest attached. That such an execution issued by us was valid and proper, is expressly alleged in the complaint, and, indeed, the plaintiff’s action rests upon this proposition, as otherwise a sale under the execution would not create a cloud. The proposition is also clear, both upon principle and authority. (Lamont v. Cheshire, cited supra; McKay v. Harrower, 27 Barb. 463; affirmed in Sagely v. Livermore, 45 Cal. 614; Dodge v. Porter, 13 Abb. 253; Thompson Prov. Rem. 439; 4 Waite’s Pract. 47; 2 id. 196 ; Thacher v. Bancroft, 15 Abb. 243; 1 Crary’s N. Y. Pract. 124; 2 id. App. No. 73.)
    Possibly, upon the issue of execution in the case of Rowland v. Celis, the Sheriff was authorized by the Code of Civil Procedure, § 550, (without a special execution) to sell the interest attached, (as was done in Vigoureux v. Murphy, 54 Cal. 346) but it is clear that lie did not sell or attempt to sell such interest, but elected to sell an altogether different interest. To sell the interest attached, he should not only have professed to sell it, but should have recited the attachment. (Wiseman v. McNulty, 25 Cal. 236 ; Donahue v. McNulty, 24 id. 411; Hihn v. Peck, 30 id. 288.) The proposition of the plaintiff is, that, by a fiction of law, a greater interest passed than the Sheriff sold. This is opposed to the principle, “ infictione juris semper subsistit equitas.” For it is due to the judgment debtor that purchasers should be informed of the full extent of what is offered for sale; otherwise they would bid only the value of what is offered. The case of. Bagly v. Ward, 37 Cal. 121, does not sustain them. All that was held in that case was, that the effect of the attachment lien was to preserve the priority thereby acquired. This we admit; but we submit that, to preserve that priority, the Sheriff—either under a special execution, or under the statutory authority of the Code of Civil Procedure, § 550—must sell the interest attached.
    
    In this case it does not appear that there was any levy. (Code Civ. Proc. §§ 559, 542; Sharp v. Baird, 43 Cal. 579; Main v. Tappener, id. 209; Pract. Act, § 125.)
    
      Brunson & Wells, and Graves & Chapman, for Respondents.
    Respondent, by the deed upon the Rowland sale, acquired all the interest of Celis in the premises in question which lie held on the 26th day of December, 1876, and prior to, and independent of, any lien in favor of appellant Pico. The appellants assail the sufficiency of the levy of our attachment, and rely upon the testimony found in the transcript. But that testimony does "not justify appellants’ assuming that the statutory order as contended for was not followed. To prove a usual custom can do nothing more than to raise a weak presumption, while the law raises stronger presumptions than that in our favor. When the Sheriff levies an attachment on real estate, and returns the writ of attachment “ executed,” without setting forth the manner of its service, or showing that he púrsued the directions pointed out by the statute, it will be presumed that the attachment was regularly executed. (Redus v. Wafford, 4 Smedes & M. (Miss.) 579; Smith v. Cohea, 3 How. (Miss.) 35; Drake v. Collins, 5 id. 253; Case v. Colston, 1 Met. (Ky.) 145; Rowan v. Lamb, 4 Greene, (Iowa) 468; Webber v. Webber, 1 Met. (Ky.) 18; Anderson v. Sutton, 2 Duval, 480; Davis v. Johnson, 3 Munf. 81; Hefur v. Hesse, 29 La. Ann. 149; Wood v. Terry, 4 Lans. (N. Y.) 80; Ross v. Reed, 1 Wheat. 482; Minter v. Crommelin, 18 How. (U. S.) 87; Wilkes v. Dinsman, 7 id. 89; Strother v. Lucas, 12 Pet. 410; United States v. Arredondo, 6 id. 691; Guy v. Washburn, 23 Cal. 111 ; Todemier v. Aspinwall, 43 Ill. 401; Jenkins v. Parkhill, 25 Ind. 473; Kelly v. Green, 53 Pa. St. 302; Sumett v. State, 17 Tex. 308; Morse v. McCall, 13 La. Ann. 215; Hickman v. Boffman, Hardin, 348.) The form of judgment in a suit in attachment is the same as in any other suit, whether there be personal service or not, and when there is personal service, a general execution should be awarded. In either case, the propcrty attached is specially liable. (Young v. Campbell, 10 Ill. (5 Gilm.) 80; Ames v. Wentworth, 5 Met. (Mass.) 294; Garey v. Hines, 8 Ala. 837.) Appellants claim that our execution and sale, followed by a sheriff’s deed, does not include any title held or secured by our attachment lien, for the reason that our execution was in the ordinary form, while they have discovered a writ denominated a venditioni exponas, which operates as a panacea for all such cases. We have examined all the cases and forms to which they referred us in their brief in the Court below. Sagely v. Livermore, 45 Cal. 614, had reference exclusively to personal property; so also the case of McKay v. Harrower, 27 Barb. 463.
    In Clark v. Sawyer, 48 Cal. 133, 138, the Court says, Justice Rhodes delivering the opinion : “ The authorities make a distinction between cases where the venditioni issued for the sale of personal property, and where it issued for the sale of land. * * * In England the venditioni goes only for the sale of personal property, and consequently the authorities there are all of this class.” In that case the Court held that the writ was properly placed in the hands of the Sheriff and not the ex-Sheriff, for the reason that only land being attached "the ex-Sheriff held nothing by virtue of his attachment.
    The forms referred to in both the 2nd and 3rd Waite’s Practice will be found, when read in connection with the subject-matter immediately proceeding them, and to which the forms relate, to be for personal property, and to refer to the case of McKay v. Harrower, supra, for their authority. The same is true of form No. 111, p. 630, Thompson’s Prov. Rem., as will be seen at once by referring back to pages 439 and 440.
    Upon the strength of the case of Lamont v. Cheslure, 65 N. Y. 30, appellants contend that our title under the Rowland sale only relates back to April 21st, 1877, the date of the judgment. In that case the principal question discussed and decided, as stated by the Court, was, as to whether attachments with Us pendens, filed under the Code, would take precedence of a prior unrecorded deed, of which the attaching creditors had notice, and it was held that they would not. The technical ground mentioned in the last part of the opinion of the Court was not discussed, but was thrown in as an extra apparently, without reflection or mature deliberation.
    
      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. (Bagly v. Ward, 37 Cal. 121, 131; Drake on Attach. § 224 a.)
    A sheriff’s deed, executed in pursuance of a judgment obtained in an attachment suit, takes effect by relation as of the date at which the attachment was levied, and overreaches a deed made subsequent to that date. (Sharp v. Baird, 43 Cal. 577.)
    When questions arise as to the title of property claimed through an attachment and the judgment and execution following it, the rights so acquired look back for their inception, not to the judgment, but to the attachment. (Tyrell v. Rountree, 6 Pet. 464; Martin v. Dryden, 1 Gilm. (Ill.) 187, 213; Ensworth v. King, 50 Mo. 477 ; Lackey v. Seibert, 23 id. 85, 92; Wilson v. Forsyth, 24 Barb. 105, 119 ; Brown v. Williams, 31 Me. 403 ; Hannahs v. Felt, 15 Iowa, 141; Oldham v. Serivener, 3 B. Monroe, 579; Langdon v. Raiford, 20 Ala. 532; Fullson v. Green, 19 Ark. 376 ; Tappan v. Harrison, 2 Humph. (Tenn.) 172 ; Miller v. Williams, 30 Vt. 386.)
    The judgment, and not the execution or its levy, perpetuates the lien. (Ensworth v. King, 50 Mo. 477, 482.)
   McKee, J.:

The action is brought to enjoin the defendants from selling the land described in the complaint, under an execution issued upon an order of the late District Court of Los Angeles County, whereby the defendant Alexander, Sheriff of the County of Los Angeles, was commanded to proceed and sell all the title and interest which one E. F. de Celis had in the land on the 2nd day of January, 1877, and which had been on that day levied on by a writ of attachment issued in an action brought by the defendant Pico against the said de Celis. The plaintiff is in possession of the land, claiming to be the owner of it by judgment, execution sale, and sheriff’s deed, in an attachment suit, commenced on the 24th day of December, 1876, by one W. It. Rowland against the same judgment debtors, and also by a sheriff’s deed made to him as a rcdcmptioncr of the property from a sale made to one A. B. Chapman against the same judgment debtor. In the Rowland case, an attachment was levied on the 26th day of December, 1876; judgment was rendered on the 21st of April, 1877, and was docketed on the same day. The property was sold on the 25th of June, 1877, by an execution issued on this judgment, which commanded the Sheriff of the county to satisfy the judgment out of the real property belonging to the defendant on the day when the judgment was docketed, or at any time afterward. The certificate of sale, and sheriff’s deed, transferred to the plaintiff, as assignee of the purchaser at sheriff’s sale, “ all the right, title, interest, and claim, which the said judgment debtor, E. F. dc Celis, had on the 21st day of April, 1877, or at any time afterward, or now has, in and to the lands ” described therein.

The case of Chapman v. Celis was a judgment rendered by a justice of the peace on the 81st of October, 1876. A transcript of the judgment was filed November 1st, 1876, and, by an execution issued thereon, the land in dispute was sold on the 27th of November, 1877. From the purchaser at the sale, the plaintiff, as the successor in interest of Celis, redeemed the land, and on the 8th day of June, 1878, the Sheriff executed and delivered to him, as rodeinptioner, a deed of all the right, title, and interest, which the “judgment debtor had in the land on the 1st day of November, 1876, or at any time thereafter.” Under these conveyances, plaintiff was let into possession of the land, and was in possession when this action was brought.

It is contended that the deed made to the plaintiff as a redemptioner was void, and transferred no title; that the proceedings by attachment in the Rowland case were irregular and defective, and created no lien; that the sheriff’s deed conveyed to the plaintiff only the estate which the judgment debtor had in the land on the 21st of April, 1877, and that that was subject to the prior attachment lien of the defendant created by the levy of his attachment on the 2nd day of January, 1877.

We think it is clear that a sheriff’s deed, executed in pursuance of an execution sale under a judgment rendered in an attachment suit, takes effect from the levy of the attachment, if the levy is such as to create a lien. Now, in the case in hand,

the officer who levied the attachment returned that he “ duly-levied the same on the 26th day of December, 1876, by attaching, according to law, all the right, title, and interest of defendant E. F. de Cells, in and to the following described real estate ”—being the land in dispute. In this return there is an absence of the acts done by the officer in making the levy. But the legal presumption is that the officer discharged the duty required of him according to law, and that the levy had been made in compliance with the directions of the.writ. (Rowan v. Lamb,4 G. Greene, 468 ; Redus v. Wafford, 4 Smedes & M. 579.) The general rule with regard to the execution of mesne process is, that all presumptions are in favor of the regularity of the acts of the officer, and that a return which simply states that the process was executed, is sufficient prima facie to show a due and proper execution. (Ritter v. Scannel, 11 Cal. 247.) But this is a disputable presumption, which may be controverted; and the officer himself was called by the defendants as a witness for that purpose. To the question, “ State how you levied that attachment?” he answered, “That special case? no more than all the balance of them; I levied the whole of them the same—all our cases. * * We levied the attachment by posting a notice on the property, together with a copy of the writ of attachment, and also recorded the same about the same time the attachment was put on the land. * * We posted our notice first, levied our writ, posted it up to show the same was levied, and then filed it in the Recorder’s office.” In this the officer testifies rather as to what was the usual custom of his office in levying writs of attachment, than to the levy of the particular writ in question. Whether the inference from that custom was sufficient to repel the presumption that the office had followed the statutory order in levying the attachment in question, was a matter for the consideration of the Court on the trial of the case, and his decision either way would be a decision upon a conflict of evidence which we would not review.

In Wheaton v. Neville, 19 Cal. 44, it was decided that two acts were necessary to create an attachment lien, to wit, service on the occupant, or posting on the premises, and filing in the Recorder’s office. In Main v. Tappener, 43 Cal. 206, it was held that both acts must be performed in the order in which they are named in the statute. In both these cases, the contests were between attaching creditors and purchasers in good faith, for value, each of whom had obtained his deed before the levy of the attachment was completed. In the one case, no copy of the writ of attachment had been filed in the Recorder’s office until nearly a month after the purchaser had received his deed. In the other, a copy of the attachment had not been posted on the premises until an hour and a half after the purchaser had paid his purchase-money, and received his deed : and, in both, it was held that the doctrine of relation did not help the purchasers at the sheriff’s sales, because the levies of the attachments were not completed before the deeds were de livered to the vendees of the attaching debtor, and that their intervening rights must prevail over the attachment levies. But here no such question arises. The Court below found that the attachment was levied according to law several days before the levy of the attachment in the defendant’s case. It was, therefore, a prior lien to that of the defendant. A. prior lien gives a prior claim, which is entitled to prior satisfaction out of the subject it binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it, which shall postpone him, in a court of law or equity, to a subsequent claimant. (Rankin v. Scott, 12 Wheat. 177.) This lien was not affected by any irregularities in the attachment itself, nor was it destroyed by the judgment rendered in the attachment suit. Any irregularities in obtaining it were waived by the defendant to the suit when he appeared and answered, without taking advantage of them by motion or otherwise, in the course of the proceedings. The process is merely auxiliary, and the judgment in the action cures all irregularities.. (Redus v. Wafford, 4 Smedes & M. 579; Dunn v. Crocker, 22 Ind. 324; Caruthers v. Click, 1 Iowa, 54.)

The Court had jurisdiction of the parties, of the subject-matter, and of the property which had been taken by the writ of attachment; and any errors of law in the record of the case must be disregarded by a court when the record is introduced collaterally as evidence of title to the property which had been attached. The objections which wrere made to the affidavit, undertaking, and writ of attachment, were, therefore, properly overruled ; in fact, the affidavit and undertaking were sufficient. Nor was the lien lost or destroyed. In Bagly v. Ward, 37 Cal. 121, it was held, that “ when a judgment is rendered in an attachment suit, and becomes a lien on real property attached, the lien of the attachment is merged in the judgment.” But the judgment does not operate so as to release or obliterate the attachment lien. The property attached is still in contemplation of law in the hands of the officer, subject to the judgment. The attachment lien still exists so as to confer a priority in the lien of the judgment. This result is attained in an indirect way by applying the doctrine of relation to the series of acts necessary to be done to transfer title to the property attached. The property is sold under the final process issued on the judgment, but the deed made to the purchaser at the sale, as the last of the series of acts, takes effect from the date of the levy of the attachment, as the first of the series of acts, and perfects the title to the property from the day when it was taken by the officer for the satisfaction of the judgment. (Stark v. Barnes, 4 Cal. 412; Sharp v. Baird, 43 id. 577.)

Perhaps it would be more in accordance with the fitness of things to deal with the fact of the levy of the attachment as of an incipient execution, by which the officer has taken into his possession the subject of the levy for the satisfaction of any judgment which might be recovered, and to order him, after judgment, to sell the specific property for that purpose. Under the other practice, the levy of the attachment, upon the principle of transit in rem judicatam, becomes merged in the judgment, and the judgment perpetuates the lion of the levy, and the sheriff’s deed perfects the title which passes by the sale under the judgment and relates to the date of the levy. Upon these principles, it is not necessary for the Court, in order to enforce priority of lien, to make an order for the sale of the property attached, or to issue a venditioni exponas. The execution upon the judgment is a sufficient authority to the Sheriff to sell the real property which he has in his possession, and the deed which he makes relates back to the date of the lien perpetuated by the judgment.

If this be not so, a subsequent attachment lien would give an attaching creditor a lien superior to the title of a purchaser in an action under a judgment which perpetuates a prior attachment lien.

The case of Lamont v. Cheshire, 65 N. Y. 30, does not conflict with these views. By § 132 of the New York Code, as it stood in 1859, the plaintiff in an attachment suit was required to file a lis pendens, which, from the time of filing, operated as constructive notice to a purchaser or incumbrancer of the property affected thereby ; and the question presented for consideration in the case was, whether a person whose conveyance was recorded subsequent to the filing of a lis pendens in certain attachment suits, was to be deemed a subsequent purchaser or incumbrancer within the meaning of that section. The defendant in the case had, by purchase from the judgment debtor, a month before the filing of the lis pendens in the actions, acquired a title regular in all respects except that he had not recorded his conveyance, but the attaching creditors knew of the existence of the deed; and the Court held that the deed of the plaintiff, obtained from the Sheriff at execution sale, although registered, passed no title whatever, when taken with knowledge of the existence of the prior unrecorded deed.

As in that case the title of the judgment debtor had passed to the purchaser before the filing of the lis pendens in the attachment suits, so in this the title of the plaintiff, which originated in the levy of a writ of attachment older than that claimed by the defendant, must prevail against the junior lien claimed by the defendant; and as successor in interest of the judgment debtor, the plaintiff was entitled to redeem the land conveyed to him from the Chapman sale, under § 701 of the Code of Civil Procedure. The defendant, Pico, as a judgment creditor, had also the same right; but he failed to exercise it.

No question is made as to the regularity of the proceedings in the Chapman case. The legal effect of the deed to the redemptioner by the Sheriff is the only thing called into question. But so far as the plaintiff’s title is concerned, the question is in no way material. The redemption had at least the effect of releasing the plaintiff’s land from the sale under the Chapman judgment. That seems to have been the view taken of it by the Court below, and of that the defendant cannot complain, for it is in no way to his prejudice.

Being the owner, and in possession of the land, the plaintiff is entitled to enjoin the threatened sale under the defendant’s execution, because, although the sale would be ineffectual to pass title to a purchaser, it would yet be sufficient to cast a doubt as to the validity of the plaintiff’s title, and to cast a cloud upon it; and where such is the case, a Court of Equity will enjoin the sale. (Pixley v. Huggins, 15 Cal. 127 ; Fulton v. Hanlow, 20 id. 481; Thompson v. Lynch, 29 id. 189; Marriner v. Smith, 27 id. 653 ; Ramsdell v. Fuller, 28 id. 42.)

Judgment and order denying motion for new trial affirmed.

MTRICK, J., concurred.

Thornton, J., concurred in the judgment.  