§ 16.

Particular Estates or Interests.

[a] The interest of a miner in his mining claim is property, and may be taken and sold under execution.-McKeon v. Bisbee, 9 Cal. 137, 70 Am. Dec. 642.

[b] The interest of a joint tenant may be sold on execution.-(Cal. 1858) Waldman v. Broder, 10 Cal. 378.

[c] Trust property is not subject to execution sale for debts of trustee.-Hart v. Burnett, 15 Cal. 578.

[d] A pre-emption claim cannot be sold on execution. (Cal. 1872) Moore v. Besse, 43 Cal. 511.

[e] If a deed of trust leaves an interest in the trust property in the grantor, such interest may be sold on an execution against him.-Kennedy v. Nunan, 52 Cal. 326.

[f] Equitable title of beneficiary may be sold under execution.-Le Roy v. Dunkerly, 54 Cal. 452, 460.

[g] The term "land" embraces all titles, legal or equitable, perfect or imperfect, including such rights as lie in contract, those executory as well as those executed. Any interest in land, therefore, legal or equitable, is subject to attachment or execution.-Fish v. Fowlie, 58 Cal. 373.

[h] Trustor's interest in trust estate may be sold under execution.-King v. Gotz, 70 Cal. 241, 11 Pac. 656.

on such property, and take it into possession for the purpose of subjecting it to sale.Waldman v. Broder, 10 Cal. 378.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 954, 955; 21 Cent. Dig., cols. 355-358, § 87.

§ 18. Pledged Property.

[a] Pledged property is not subject to execution.-Dalrymple v. Hanson, 1 Cal. 124.

[b] Execution of pledged property must be by garnishment of pledgee which creates lien upon surplus.-Edwards v. Beugnot, 7 Cal. 162; Treadwell v. Davis, 34 Cal. 601.

[c] Interest of pledgor of stock is subject to execution sale.-Farmers' etc. Bank v. Wilson, 58 Cal. 600.

FOR AUTHORITIES FROM OTHER STATES: See 17 Cyc. 967, 968; 21 Cent. Dig., 391-392, § 103.

cols.

§ 19. Property Conveyed in Fraud of Credi

tors.

[a] Land conveyed in fraud of creditors is subject to execution as if no conveyance had been made.-Bull v. Ford, 66 Cal. 176, 4 Pac. 1175.

§ 20. Property Mortgaged or Conveyed to Secure Payment of Debts.

[a] A, being indebted to B, delivered to him a quantity of lumber as security for payment of the debt, with the understanding that B should proceed and sell the lumber, and pay his debt out of the proceeds. The lumber was afterward levied upon by the defendants under an execution in their favor, against A as his property. Held, that the lumber was execution not subject to seizure under an against A without payment in the first place of his indebtedness to B.-Swanston v. Sublette, 1 Cal. 123.

[b] Interest of mortgagor is liable to attachment and execution.-Halsey v. Martin, 22 Cal. 645.

[be] Where a valid chattel mortgage exists upon a growing crop prior to a levy of execution, and there is no valid attachment lien prior to the chattel mortgage to which a sale under execution can relate, there can be no valid levy of execution upon the crop, without paying off the chattel mortgage as provided by section 2969 of the Civil Code.Rudolph v. Saunders, 111 Cal. 233, 43 Pac. 619.

[c] Where a debtor assigns accounts for collection and application to certain debts, he has an interest remaining which is subject to execution.-Lackman v. Kearney, 142 Cal. 112, 75 Pac. 668.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 961-967; 21 Cent. Dig., cols. 326, 327, § 51; cols. 373-392, §§ 95103.

§ 21. Interests Under Contracts.

[a] A delivered to B oxen and a wagon, which B was to pay for in drawing wood. While B was still in process of paying, the sheriff attached and took the property on execution against A, to which B was not a party. Held that, until B's neglect or refusal to complete his payment, a seizure by the sheriff was illegal, unless the transaction were in delay of creditors, and even then the judgment must be produced.-Bickerstaff v. Doub, 19 Cal. 109, 79 Am. Dec. 204.

FOR AUTHORITIES FROM OTHER STATES:

21 L. R. A. 623, note. See, also, 17 Cyc. 968-971; 21 Cent. Dig., col. 327, § 53; cols. 392-402, §§ 104-116.

§ 22. Bills or Notes.

[a] Promissory notes are subject of levy on execution.-(Cal. 1867) Davis v. Mitchell, 34 Cal. 81.

[b] Code of Civil Procedure, section 17, subdivision 3, includes notes in its definition of personal property. Section 688 provides that property may be attached or taken on execution in like manner as on writ of attachment; and by section 542, subdivision 3, personal property capable of manual delivery must be attached by taking it into custody. Held, in view of these provisions, that a note of which the sheriff may peaceably take actual possession may be levied on and sold under execution.-Hoxie v. Bryant, 131 Cal. 85, 63 Pac. 153.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 971; 21 Cent. Dig., cols. 404, 405, § 118.

§ 23. Ownership or Possession of Property. [a] An execution justifies a sheriff in seizing the debtor's property in his own possession, or in that of an agent or parties holding for his benefit.-Bickerstaff v. Doub, 19 Cal. 109, 79 Am. Dec. 204.

[b] If an officer, holding an execution against A, wishes to levy it on property in the possession of B, the test of his right to do so is whether B's right to the possession is such as would prevent A's retaking it.Knox v. Marshall, 19 Cal. 617.

[c] Where A made a verbal contract with B to sell him a tract of land and put B in possession, judgment creditors of B acquired a right to the land which may be enforced by sale under execution.-Logan v. Hale, 42 Cal. 645.

down on the official map of the city, were, by operation of the act of March 26, 1851, extended and carried to the front line of the city, and as such are subject to the free enjoyment of the public, and exempt from executions against the city.-Wood v. San Francisco, 4 Cal. 190.

[b] City's right to wharfage cannot be sold under execution.-Wood v. San Francisco, 4 Cal. 194.

[c] Execution levy upon county's revenues in the hands of the treasurer is illegal and void.-Gilman v. Contra Costa County, 8 Cal. 52, 68 Am. Dec. 290.

[d] The municipal lands to which the city of San Francisco succeeded were held in trust for the public use of that city, and were not, either under the old government or new, the subject of seizure and sale under execution. Hart v. Burnett, 15 Cal. 530.

[e] Property held by city in trust for its citizens is not subject to forced sale for debts of city.-Hart v. Burnett, 15 Cal. 578; Oakland v. Oakland W. F. Co., 118 Cal. 195, 196, 50 Pac. 277.

[f] Under act of March 26, 1851, granting to the city of San Francisco the use and occupation of the beach and water lots described therein for the period of ninety-nine years, on condition that the city shall pay into the state treasury twenty-five per cent of all money derived from the sale of such property, within twenty days after receipt of the selling price, such property is liable to sale under execution against the city, and the purchaser takes the whole estate of the city, subject to no trust.-Wheeler v. Miller, 16 Cal. 124.

[g] The city of San Francisco has succeeded to the rights of the pueblo of Yerba Buena, but in trust for the public use of the city, and the lands are not the subject of seizure and sale under executions against the city.— Fulton v. Hanlow, 20 Cal. 450.

[h] The levy upon and sale of a road, by virtue of an execution, gives to the purchaser no right or title to the same, for, being the property of the public, the defendant in the execution has no interest therein which can be conveyed by the officer.-Wood v. Truckee Turnpike Co., 24 Cal. 474.

$ 25.

Property of Citizen on Execution Against Municipality.

[a] The private property of an inhabitant of a county is not liable to seizure and sale on execution for the satisfaction of a judgment rendered against the county.-Emeric v. Gilman, 10 Cal. 404, 70 Am. Dec. 742.

[b] Movables of a street railroad company, even though necessary to operation under the company's franchise, are not exempt from forced sale.-Risdon Iron etc. Works v. Citizens' Traction Co., 122 Cal. 94, 68 Am. St. Rep. 25, 54 Pac. 529.

[c] Since a reclamation district has no right to acquire property except to carry on the work of reclamation and matters incidental thereto, property devoted to such use is not subject to levy to satisfy judgments against the district.-San Francisco Sav. Union v. Reclamation Dist. No. 124, 144 Cal. 639, 79 Pac. 374.

§ 27. Jurisdiction and Authority to Issue.

[a] Where a clerk of the district court improperly refuses to issue execution on a judgment rendered in a court of which he is clerk, on the ground that the judgment has been attached at the suit of another party, a bill in equity cannot be sustained to release the attachment and compel the clerk to issue the execution, as the injured party has his remedy at law by an action on the official bond of the clerk.-Miller v. Sanderson, 10 Cal. 489.

[b] Where the clerk of a court refuses to issue an execution on a small money judgment, plaintiff's remedy is by motion in the proper court for an order authorizing its issuance, or by action against the clerk, and not by application for mandamus.-Fulton v. Hanna, 40 Cal. 278.

[c] The clerk of the superior court, succeeding to a district court, may, without an

§ 30. Counties to Which Execution may Issue.

[a] In order to sell real estate of a judgment debtor under a justice's judgment, if the property lies in a different county, a transcript of the judgment must be filed in the recorder's office of that county, in order to fix the lien; otherwise, no such proceedings are necessary, but the course for enforcement of the execution is the same as if it had issued from the district court.-Campbell v. Wickware, 19 Cal. 145.

§ 33. Leave of Court.

[a] No notice to the opposite party is required on an application for execution on a judgment more than five years old under the two hundred and fourteenth section of the Practice Act.-Bryan v. Stidger, 17 Cal. 270.

[b] When questions as to the existence and validity of a judgment more than five years old are submitted to a referee, with power to make out a judgment upon his finding in the matter referred to him, and he reports that the judgment is good and valid, and makes out a judgment that execution issue, but states that he has not passed upon the question whether the judgment is unsatisfied, and the court confirms the referee's report and judgment, execution cannot issue under section 214 of the Practice Act, which provides that execution on a judgment more than five years old cannot issue unless the court is satisfied that some portion of the judgment remains unsatisfied.-Solomon v. Maguire, 29 Cal. 227.

[c] The clerk of the superior court which succeeded a district court is authorized, without an order of the court, to issue an execution upon a judgment of the district court.Dorn v. Howe, 59 Cal. 129.

[d] Upon a motion for an order that execution issue upon a judgment apparently satisfied, upon an affidavit that the judgment had not been satisfied in fact, and that the entry of satisfaction thereof had been fraudulently procured, it is proper and regular practice for the court, of its own motion, to order the defendant to show cause why plaintiff's motion should not be granted, thus giving the defendant an opportunity to be heard in answer to the motion.-McAuliffe v. Coughlin, 105 Cal. 268, 38 Pac. 730.

[de] The action of the trial court in denying a motion under Code of Civil Procedure, section 685, authorizing execution by leave of court on motion, after five years from the date of the judgment, will not be reversed on appeal unless the trial court abused its discretion.-Wheeler v. Eldred, 137 Cal. 37, 69 Pac. 619.

[e] Under Code of Civil Procedure, section 685, providing that a judgment may be enforced after the lapse of five years from its entry by leave of court upon motion, the issuance of an order for execution is not invalid because made without notice of motion, in the absence of circumstances making the issuance of such order without notice an abuse of discretion, or making it imperative to vacate or reverse the order.-Harrier v. Bassford, 145 Cal. 529, 78 Pac. 1038.

[f] An order for an execution on a money judgment amounts to an order for its enforcement, and is authorized by Code of Civil Procedure, section 685.-Water Supply Co. v. Sarnow (Cal. App.), 82 Pac. 689. FOR AUTHORITIES FROM OTHER STATES:

See 17 Cyc. 1027-1032; 21 Cent. Dig., cols. 486-496, §§ 160-162.

§ 34. Time for Issuance.

[a] The clerk of the county court, in which the judgment of a justice of the peace is filed and docketed, has no power to issue execution upon such judgment after the expiration of five years from the rendition of the judgment.-Kerns v. Graves, 26 Cal. 156.

[b] Plaintiff is entitled to execution immediately after judgment, unless stayed by the court.-Carpentier v. Loucks, 28 Cal. 69.

[c] Under code, section 209, providing that a party in whose favor judgment is rendered may, at any time within five years after the entry thereof, issue a writ of execution, a writ of execution issued prior to the entry of the judgment is unauthorized, though issued after the rendition of the judgment.Gray v. Palmer, 28 Cal. 416.

[d] Every process which may be required to completely enforce a judgment must be taken out within five years after its entry.-Bowers v. Crary, 30 Cal. 621.

[e] The judgment-roll is not required to be made up by the clerk until after the entry of the judgment. Execution may lawfully be issued and enforced as soon as the judgment is entered, and before the filing of the roll.— Sharp v. Lumley, 34 Cal. 611.

[f] Up to April 8, 1861, a party in whose favor a judgment was rendered was entitled to an execution at any time within five years, and after five years had elapsed he was entitled to an execution on obtaining leave of the court. Between April 8, 1861, and April 2, 1866, an execution could issue only within five years after the entry of the judgment. Since April 2, 1866, an execution in all cases other than for the recovery of money may issue after five years, upon leave of the court. Mann v. McAtee, 37 Cal. 11.

[g] Though Practice Act, sections 204, 210, 217 provide that the docketing of a judgment creates and preserves a lien for two years, an execution may issue and real estate be levied on and sold thereunder, though the judgment has not been docketed.-Hastings v. Cunningham, 39 Cal. 137.

[h] An execution may be issued on a judgment which has not been docketed.-Los Angeles County Bank v. Raynor, 61 Cal. 145.

[i] Judgment requiring party against whom it is rendered to do some specific act may be enforced after lapse of five years by leave of court.-Dorland v. Hanson, 81 Cal. 204, 15 Am. St. Rep. 44, 22 Pac. 552.

[j] Execution sale under judgment entered after affirmance of judgment rendered upon a premature and ineffectual appeal is valid, and passes title.-Brady v. Burke, 90 Cal. 1, 27 Pac. 52.

[k] The trial court has no authority or power to make an order for the issuance of a writ of execution upon a judgment for the recovery of money after the lapse of five years from the entry of the judgment; and a writ issued

[a] The time during which execution is stayed constitutes a part of the five years within which execution must issue in accordance with section 209 of the Practice Act.-Solomon v. Maguire, 29 Cal. 227.

[b] Under Code of Civil Procedure, section 681, allowing five years from the entry of a judgment to issue execution thereon, the running of a statute is not suspended pending an injunction staying execution.-Buell v. Buell, 92 Cal. 393, 28 Pac. 443.

§ 37. Form and Requisites.

[a] If an execution correctly refers to a judgment in such manner as to identify it, this is sufficient to justify the sheriff in enforcing it, notwithstanding it contains an error in reciting the day on which the judg ment was rendered.-Franklin v. Merida, 50 Cal. 289.

[b] Under Code of Civil Procedure, section 128, subdivision 8, an execution which does not clearly set out the amount due thereon is voidable, but not void.-Van Cleave v. Bucher, 79 Cal. 600, 21 Pac. 954

[c] Where an execution states that the judgment was recovered "in the superior court of the county of L.,'' it is not void for failing to state the county where the judgment-roll was filed, as required by the Code of Civil Procedure, section 682, as it will be presumed that the clerk of the court did his duty, and filed the same in the county where the judgment was recovered, as provided by Code of Civil Procedure, section 670.-Van Cleave v. Bucher, 79 Cal. 600, 21 Pac. 954.

several months prior to the issuance of the execution, is void, under Code of Civil Procedure, section 682, declaring that an execution shall be sealed with the seal of the court and subscribed by the clerk; and a purchaser at a sale had under a levy based on such execution acquires no title to the property, so as to enable him to question a conveyance thereof by the judgment debtor as fraudulent.— (1900) O'Donnell v. Merguire, 60 Pac. 981, judgment affirmed (1901), 131 Cal. 527, 63 Pac. 847.

[b] Code of Civil Procedure, section 682, provides that a writ of execution must be subscribed by the clerk of the court. Held, that an execution signed in print with the name of a former clerk of the court, and in writing by a deputy of the present clerk, was void, and sale thereunder conveyed no title. Judgment (1900) 60 Pac. 981, affirmed.-O'Donnell v. Merguire, 131 Cal. 527, 63 Pac. 847.

FOR AUTHORITIES FROM OTHER STATES:

§ 39.

See 17 Cyc. 1024; 21 Cent. Dig., col. 543, § 188.

Seal.

§ 42. Delivery to and Receipt by Sheriff.

[a] The fact that the execution upon the judgment was retained by the attorney of the plaintiff until after an order was procured from the school trustee, and a requisition from the school superintendent for a payment of the debt due from the school district to the execution defendant, is not material, if before the money was paid the sheriff took the execution and received the money from the treasurer.-Skelly v. Westminster School District, 103 Cal. 652, 37 Pac. 643.