Brown v. Hawkins , 66 Idaho 351 ( 1945 )

Concurring in part and dissenting in part.

October 7, 1943, appellants agreed with respondent, in writing, to sell and convey to her a good merchantable, fee simple title in and to a certain lot located in Filer Townsite, Twin Falls County. March 2, 1944, appellants offered to convey title to the property by warranty deed. Respondent refused to accept the conveyance or to pay the unpaid balance on the purchase price because the abstract of title disclosed that a certain judgment which had been entered by the district court in an action for the foreclosure of certain laborers' and materialmen's liens had not been satisfied and released of record, respondent taking the position that said judgment constituted a lien or cloud against the title to the premises. Respondent demurred to appellants' complaint; the court sustained the demurrer and dismissed the action, from which order and judgment this appeal is prosecuted.

This action was filed March 24, 1944; the judgment claimed to be a cloud on appellants' title was docketed in 1909, approximately 35 years prior to the commencement of this action. No proceeding of any nature has been brought for the purpose of keeping the judgment alive; no execution on the judgment has ever issued; no sale of the premises has ever been had.

I am in agreement with the majority opinion wherein it is held that the judgment entered in favor of Green and Calvert merged in the judgment obtained by the Weeter Lumber Company, Ltd., Green and Calvert having assigned their judgment to the Weeter Lumber Company, the Weeter Lumber Company having acquired the legal title from the heirs of Charles H. Allen, deceased, the then owner of the premises at the time the labor and materials were furnished, the Green and Calvert judgment and the Weeter Lumber Company judgment merged in the legal title acquired by the latter company and, for the reasons above stated, were extinguished and terminated as though they never existed.

There remains, therefore, the only question to be determined, namely, whether or not the Glines judgment docketed in 1909 constitutes a lien or cloud against the premises.

An examination of the judgment in favor of Glines simply recites, in substance and effect, that there was so much money due respective lien claimants, including Glines, and ordered and directed that the property be sold. The property was not identified, so far as the purported lien is concerned. The court used the following language:

"that said premises described in complaint as Lot 5 in Block 7 of Duquesne's addition to the Town of Filer, now known as Lot 5 in Block 22 of the Final and Amended plat of the Town of Filer, * * * or so much thereof as may be sufficient to raise the amounts hereinbefore named, together with costs of suit * * *"

How large Lot 5 was at the time the judgment was entered, or how much of Lot 5 was necessary for the convenient use and occupation of the premises is not disclosed by the record. The court failed to find the amount of land required for the convenient use and occupation of the premises subject to the lien, as required by sec. 44-505, I.C.A. As was said inRobertson v. Moore, 10 Idaho 115, 128, 77 P. 218, 222:

"It will be observed that the court did not comply with this provision of the statute and fix the amount of land that should be sold for the necessary requirements for the convenient use and occupation thereof * * *. The intention of the legislature in this provision of the law is obvious. The court has the power to call witnesses to ascertain the amount of land necessary for the convenient use and occupation of the property to be sold under the terms and conditions of the lien and judgment * * *. It was error on the part of the trial court not to comply with this provision of the statute, and the case is remanded, with direction to the trial court to ascertain the amount of land required for the convenient use and occupation of the property ordered sold under the lien * * * and after such fact is ascertained make a proper finding and modify the judgment accordingly." (Dybvig v. Willis, 59 Idaho 160,82 P.2d 95; Idaho L. H. Co. v. DiGiacomo, 61 Idaho 383,102 P.2d 637.)

The court having failed to find the facts as required under the provisions of sec. 44-505, supra, no lien was created against the premises by reason of the judgment in favor of Glines; no valid sale of the premises could have been had in the absence of such finding.

The judgment in favor of Glines was a money judgment only for the amount due him for labor, (Secs. 7-1109, 8-101 and 8-105, I.C.A.; secs. 681 and 685, C.C.P. (Cal.) which when docketed was a lien generally against all the debtor's premises situated within Twin Falls county. The supreme court of California, construing statutes similar to secs. 8-101 and 8-105, supra, held that judgments foreclosing liens were "to enforce the payment of money," and came within the provisions and terms of sec. 681, C.C.P. (Jacks v. Johnston (Cal.), 24 P. 1057; Cortez v. Superior Court (Cal.),24 P. 1011.) In Dorland v. Hanson (Cal.), 22 P. 552, it is said:

"Counsel attempt to distinguish between an execution and an order of sale, and contend that section 681 (our sec. 8-101) is confined in terms to the former, and does not limit the time in which the latter may issue. We think, however, that the difference between the two writs is more in the name than anything else, so far as it affects the questions before us, and that section 681 (our sec. 8-101) must be held to apply to both."

The judgment ceased to be a lien or cloud against the premises at the end of five years following the docketing thereof, and at the end of five years the lien lapsed, under the provisions of sec. 7-1109, I.C.A., which provides:

"Judgments in the district courts of this state and judgments in district courts of the United States, if rendered within this state, from the time they are docketed, become liens upon all the real property of the judgment debtor, not exempt from execution, within the county in which the judgment is docketed and the court records kept, owned by such debtor at the time or which he may afterwards acquire, until the lien expires. Thelien continues for five years unless the judgment be stayed on appeal by the execution of a sufficient undertaking, in which case the lien ceases."

Section 8-101, I.C.A., provides:

"The party in whose favor judgment is given, may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement."

Section 8-105, I.C.A., has no application to the facts of this particular case. No lien was perfected or became enforceable; no judgment, other than a money judgment, was ever entered; no sale of the premises under the purported lien was ever had; no return of sale was ever made by the sheriff; no action was brought to renew the Glines judgment, as provided for in sec. 5-215, I.C.A.

The expiration of the lien at the end of five years did not extinguish the judgment, but terminated the statutory security. (Bashro v. Beloit, 20 Idaho 592, 602, 119 P. 55.) We are not concerned with the judgment nor with the jurisdiction of the court to enter the judgment, we are concerned only with the question of when, subsequent to the entry of the judgment, the lien lapsed. The judgment was barred by the statute of limitations at the end of six years. (Sec. 5-215, I.C.A.) The lien lapsed at the end of five years. (Sec. 7-1109, I.C.A.) The provisions of sec. 8-101, I.C.A., fixes the time within which execution may issue. "At any time within five years after the entry thereof." (Custer v. McCutcheon, 283 U.S. 514,75 L. ed. 1239, 51 S. Ct. 530.) As was held in Platts v. Pacific Fed. Sav.Assn., 62 Idaho 340, 349, 111 P.2d 1093, 1096:

"We conclude and so hold, that a judgment lien lapses under the statute creating it, at the expiration of five years fromthe date it is docketed."

In my opinion there is no logic in the contention that where a judgment is barred by the statute of limitations, the judgment lien is not. Where the judgment is unenforceable, dead, the lien is also unenforceable and dead. Counsel's contention that the lien exists forever; that it has no limitation and may, by supplementary proceedings, be renewed and enforced upon application to the trial court, even though it be 100 years old, is, to my mind, untenable. If the judgment to which the lien owes its existence is barred by the statute of limitations — has ceased to exist — it is clear that the lien which is a mere incident to the judgment has also ceased to exist. (Ackiss v. Satchell, 104 Va. 700, 52 S.E. 378.) A laborer's or mechanic's lien has no greater sanctity than any other lien. The time fixed by the statute cannot be prolonged by the courts, and the lien cannot be enforced in equity after it has ceased to be enforceable at law by the expiration of the statutory period.

In Lamson v. Gold, 72 W. Va. 618, 621, 79 S.E. 728, 729, 51 LRANS 883, it is held:

"The creditor's right to the lien of his judgment is gone forever when his right to sue out execution on the judgment or to revive it by scire facias is barred."

There is another cogent reason that has been suggested which, to my mind, is sound and sufficient, in and of itself, to reverse the judgment.

Conceding that sec. 7-1109, I.C.A., does not apply to a judgment foreclosing mechanic's lien because it is not a general judgment, we must look elsewhere for a statute fixing the duration of the lien of such judgments.

Section 44-511, 44-512 and 44-513, I.C.A., are evidently the sections authorizing a judgment of foreclosure of a mechanic's lien, but they designate no duration for the lien. Either the lien is only immediate or everlasting, or somewhere in between. To be effective, and otherwise it would be meaningless, the legislature must have intended that it extend for a fixed time.

Ordinarily the statutes prescribe the extent, in time, of a lien of a judgment. (34 C.J. 620.) We have no specific statute; therefore, it would seem reasonable to determine the matter by reference to such statutes as we have. What reason or basis is there for holding that a lien of judgment in a special proceeding would extend beyond that of a general judgment, declared fixed at five years in sec. 7-1109, I.C.A., byPlatts v. Pac. Sav. Assn., supra.

Setion 44-516 makes applicable appropriate sections of the Civil Code of Procedure, of which sec. 8-101, I.C.A., must be considered as the one providing for carrying into effect the foreclosure judgment by sale of the covered property.

After five years no execution could issue, without a revival under secs. 5-215, 8-105 or 8-312, I.C.A. Such revival would however revive the lien only as of the date of such subsequent reviving judgment. (Evans v. City of American Falls, 52 Idaho 7 at 25, 11 P.2d 363.)

The transfers from the parties whose title is otherwise good made five years after the date of Glines' judgment are therefore unaffected by his judgment since there has been no revival. Even if revival was or could be subsequently secured, it could only attach at the date thereof, and property alienated in the interim would not have been covered by, and would therefore be free of, the previous lien.

All immediate incumbrances would therefore be unaffected by any renewal, there being none herein.

The amount involved in this appeal is negligible, but the rule announced is of great importance and far-reaching, as is readily apparent.

The judgment of the trial court should be reversed, the cause should be reinstated, and the demurrer overruled, and further proceedings should be taken as indicated herein. Costs should be awarded to appellants.

Givens, J., concurs in the conclusion reached in the foregoing opinion.