Grattan v. Wiggins.

was nearly seven years afterwards that this action was commenced. The Statute of Limitaitons, in its effects upon the rights of the parties in this case, does not depend upon any question of notice to Cook of the pendency of the foreclosure suit.

On the twenty-third day of April, 1851, Wiggins, the mortgagor, conveyed all his right, title, and interest in the property to Berrian, who, on the thirtieth day of October, 1858, conveyed the same to Laurencel and Eldredge, and the respondents insist that by taking this conveyance the title of the latter became subject to the mortgage, and that they are estopped from contesting it. The record does not disclose whether the deed to Laurencel and Eldredge was a warranty or a mere quitclaim. In the absence of proof we could not presume that it contained any covenants of warranty. There is, however, no evidence that the latter ever agreed with Berrian, or any else, to pay the mortgage, or in any way recognized it as a lien upon the property. At the date of this deed to them, Foster and they had been in the undisturbed possession of the premises, claiming the same as owners against all the world, for nearly seven years; a sufficient length of time, as we have shown, to bar all equities of redemption. They did not acquire the possession with or under this deed, and are not estopped from denying that they acquired any title under it. By taking the deed they neither parted with nor lost any rights they had acquired under Fossatt, and by lapse of time either as against Berrian or the representatives of Cook; nor did they thereby subject themselves to any obligations or burdens that did not exist against them before. A similar principle was established by this Court in San Francisco v. Lawton (18 Cal. 466).

It follows that the Court below erred in rendering the decree against the defendants who appeal. The judgment is therefore reversed, and the Court below is directed to enter a judgment dismissing the action as against all the defendants, except Wiggins, and in favor of said defendants for their costs, and the cause is remanded for further proceedings against the defendant Wiggins.

Donner v. Palmer.

DONNER v. PALMER-BRADLEY, INTERVENOR.

UPON filing a certified copy of a judgment with a County Recorder it becomes a lien upon the debtor's real property in that county for two years from the date of the filing, notwithstanding a lien by virtue of the same judgment has previously existed and expired by lapse of time in another county. The amendment of 1862 to Sec. 193 of the Practice Act, allowing the affidavits of jurors to be received to impeach their own verdict, relates merely to the remedy and governs in all applications for new trial made after its passage, although the verdict and judgment sought to be set aside were rendered previously.

A verdict to which the assent of any of the jurors was obtained by a resort to chance will be set aside.

APPEAL from the Twelfth Judicial District.

The facts are stated in the opinion of the Court.

8. O. Houghton, for Plaintiff.

Sec. 207 should not be construed alone nor according to its strict letter, but must be construed together with the other provisions of the statute relating to the same subject.

Sec. 209 provides" that execution may issue at any time within five years after the entry of judgment. After that time the judgment has no vitality and has ceased to exist.

If the position of respondent is correct, and the effect of Sec. 207 is to permit the lien of a judgment to be revived in any county other than that in which it is docketed, after the lapse of more than two years from the time of the docketing thereof, it may be done at any time within five years after the entry of judgment, and a judgment lien can be created and made to continue a considerable period of time beyond the life of the judgment itself. For to accomplish that result, it would only be necessary to file the transcript in another county a few days, even one day, before the expiration of five years, and create a lien to run two years from the date of such filing, thus producing the extraordinary result of having a judgment lien where no judgment exists to be enforced. This would be utterly absurd, yet such must be the case if that section must be construed according to its very letter.

Donner v. Palmer.

Or the transcript might be filed in another county a day before the judgment expired, and an execution issued and levied the same day, and a sale had by virtue thereof after the judgment had ceased to have any force. This would be equally absurd, and demonstrates clearly the incorrectness of the view taken of the law by our opponents.

It is a familiar rule of interpretation of statutes, that the intent of the lawmaker must be carried out, when it can be ascertained, and that intent allowed to prevail over the literal sense of the terms employed, and control the strict letter of the law, where the letter would lead to possible absurdity. Smith on stat. and constit. law, 662, Sec. 515.

This rule has been applied by this Court to Sec. 207 under consideration, in the case of Bowman v. Hovious (17 Cal. 471).

In that case effect was not given to the strict letter, for the reason that it would have led to the absurdity of reviving and extending a lien two years upon the same property, after it had been already subjected to the lien of the same judgment for one term of two years.

It was evidently the intent of the Legislature, that, where a judgment debtor had property in other counties than that in which the judgment was entered, the creditor would immediately after the entry of judgment cause a transcript thereof to be filed in such other counties, and create liens thereon. And it was evidently intended that these liens should not be continued for any great period; that the creditor should within a reasonable time subject the property of his debtor to the satisfaction of his demand, and not tie it up from other creditors. And with that object the continuance of the lien was limited to two years in the county where the judgment should be entered.

E. A. Lawrence, for Respondent Bradley.

The only point is, whether the taking out of the transcript of the judgment in the case of Cobb v. Yontz, in Santa Clara County, after the two years had expired, and filing it in San Francisco, created any lien upon the premises. If it did, then the charge of the Court was clearly erroneous, and intervenor is entitled to a new trial.

Donner v. Palmer.

I find no authorities on the point. The nearest approach to an authority is Bowman v. Hovious (17 Cal. 471). But although this point was alluded to in the briefs of counsel, that case passed off on other grounds. In New York the lien only runs ten years from the date of docketing of the judgment in the county where rendered. (Voorhies' N. Y. Code, Sec. 282.) With us the lien runs two years from filing the transcript. (Pr. Act, Sec. 207.)

If a judgment is rendered to-day in San Francisco, it at once becomes a lien; but if a transcript is sent to San Bernardino, to be filed, it may be two months before it is filed there, and yet the lien will hold in that county two months after it has expired in this county. It does not become a lien in any other county until filed there. It is not required to be filed there forthwith, or within two years, and it is plain the statute intended to give the party the benefit of a two years' lien, wherever he might file the transcript, so that he did within the life of the judgment. If it were otherwise, the Legislature would have adopted the language of Sec. 282 of the N. Y. Code, from which our Practice Act is taken, which would have the view contended for by the learned counsel. But the Legislature, in this section, have studiously avoided reënacting the N. Y. Code.

The statute imposes no limit upon the time in which the transcript shall be filed, and the Court can impose none. The only penalty for not filing it is, that the lien will not attach until it is. filed, and the law has wisely left it to the convenience and the discretion of the party to determine when he shall secure the lien.

When the lien has once attached it can only run for two years. It is not in the power of the Court or of the parties to extend it beyond that time, and for the Court to declare that the lien shall not attach, where the transcript has been filed after two years from the date of the judgment, is virtually to repeal the statute.

I do not perceive the absurdity of having a lien, after the five years' limitation has run upon a judgment. That was a mere limitation of right to bring suit upon the judgment—non constat that the judgment was dead. On the contrary until Sec. 214 was repealed, execution might issue after five years and during the whole time of limitation at common law, by an order of the Court.

Donner v. Palmer.

But that point has no bearing in this case, because the last clause of Sec. 207 is a complete answer to appellant's objection: "The lien shall continue for two years, unless the judgment be previously satisfied."

If, then, as appellant contends, the judgment is satisfied by the five years' limitation, the lien falls with it. If he files his transcript in another county four years after the date of the judgment, he has a lien for only one year. At any time within three years from date of the judgment he can have a lien for two years, "unless the judgment be previously satisfied."

Neither can this section be impaired or defeated by construing it with other sections of the statute, but gains additional plausibility from such construction.

If, as it is contended, it was the intention of the Legislature that the transcript should be filed in another county forthwith, or at any rate within two years, it would have been very natural for them to have put it into the statute. If, however, they intended to let the party who held the judgment, suit his own time and convenience for filing the same, as we contend, they would undoubtedly have used the very language of the act. The absurdity of respondent's proposition is apparent when you apply it to a Justice's judgment, which may become a lien by complying with Sec. 599 of the Practice Act. The statute prescribes no limitation of time within which to file the transcript of the Justice's judgment, and yet upon the theory of respondents, it could not be filed after two years.

At common law there was no lien. It is purely the creature of statute. (Ackley et al. v. Chamberlin, 16 Cal. 181.) And where that statute in plain and simple terms prescribes how the lien may be acquired, it would be unwise and unjust for the Court to involve it in any mysticism. A large number of titles in this State depend upon the construction for which we contend. Until the decision of Judge Campbell in this case, the searchers of titles always passed them upon the hypothesis, that filing the transcript in another county, even after the lien had expired in the first county, created a lien for two years thereafter.

CROCKER, J. delivered the opinion of the Court — NORTON, J. concurring.