Eby v. Foster

Citations

• 61 Cal. 282
• 1882 Cal. LEXIS 598

Syllabus

<p>Judgment Lien—Parol Evidence to Prove Date of Docketing Judgment—Homestead.—Action against the Sheriff and a judgment creditor to enjoin the sale under execution of land claimed as a homestead. The plaintiff acquired the title to the property on November 3, 1880, in exchange for land previously occupied by himself and wife as a homestead. A declaration of homestead upon the property in dispute was drawn at the same time with the deeds of exchange, and the three instruments were at the same time in regular succession executed and acknowledged and filed for record—the deed from the plaintiff being recorded at four minutes, the deed to the plaintiff at six minutes, and.the declaration of homestead at eight minutes past three p. M. of Nov. 3, 1880. The judgment upon which the execution was issued was entered November 9, 1878, and was docketed, but the date of the entry in the docket did not appear therefrom. The execution was issued November 6, 1880. Held: The land was not subject to the lien of the judgment.</p> <p>Id.—Id.—Id.—(McKee, J.) The date when the judgment was docketed does not appear unless it must be presumed to have been docketed on November 9,1878—the date of the rendition and entry of the judgment—or on November 6, 1880—the date of the issuance of the execution. If the former date is taken the lien expired before the time appointed for the sale; if the latter, it did not commence until after the homestead was declared; As the lien is purely statutory neither its existence nor commencement can be proved by parol.</p> <p>Id.—Id.—Id.—(Myrick and McKinstry, JJ. concurring.) The delivery of the deed to the plaintiff and the filing of the same for record together with the declaration of homestead constituted one transaction and the moment the title to the premises vested the homestead right attached; and therefore the premises were not subject to the lien of the judgment.</p>