Opinion
Argued December 9, 1884
Decided January 20, 1885
Josiah T. Marean for appellants. George J. Billings for respondent.
The defendant Riley, upon being allowed to come in and defend under section 445 of the Code, succeeded in his defense, and this motion was subsequently made to set aside the sale of his real estate, under the execution on the original judgment which was vacated by the subsequent proceedings. The jurisdiction of the court to grant the order for the service of the summons in the action by publication, and to issue the warrant of attachment, is not questioned. The court in both cases proceeded upon proof that the defendant Riley was a resident of the State of New York, and had departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or kept himself concealed therein with like intent. The judgment and attachment were, therefore, in all respects, regular, and justified the issuing of an execution against the property of the defendant. But the statute prescribes the form of the execution where a warrant of attachment has been issued, and levied by the sheriff. (Code of Civ. Pro., § 1370.) The execution issued did not conform to the statute. It commanded the sheriff to collect the judgment out of the attached personal property of the judgment debtor, and if that was insufficient, out of his attached real property, whereas the case was one under the second subdivision of section 1370, by which the execution must go, first against the attached personal property, second against the other personal property of the judgment debtor, and lastly against the attached real property.
We are of opinion that the execution for this reason was void. The statute is peremptory that executions in the cases specified "must require" the sheriff to satisfy the judgment in the way pointed out. The evident intention of the second subdivision of the section was to prevent resort to the real estate of an absconding or concealed debtor, for the satisfaction of a judgment obtained in an action in which an attachment had been issued and levied upon his real estate, until after the remedy against his personal property, both attached and unattached, had been exhausted. This is in accordance with the general policy of the law, founded upon reasons less forcible perhaps now than formerly, but which it is nevertheless within the discretion of the legislature to maintain. It is well settled that the title of a purchaser in good faith to property sold on execution, is not affected by mere irregularities in the process. But under a void process no title can be acquired, and the position of a bona fide purchaser under a void process is no better as against the real owner of the property, than that of one who purchased with full knowledge of its invalidity. ( Wood v. Colvin, 2 Hill, 566.) In this case, moreover, the purchaser and his grantees were put upon inquiry as to the validity of the execution. The execution described the judgment, and directed the sheriff to satisfy it out of the personal property attached, etc. The attachment recited the ground upon which it was issued. An examination of the records would have disclosed the fact that the execution did not conform to the statute. The claim that there was in fact no personal property belonging to the defendant in the execution, out of which it could be collected, is controverted. But if established, we are of opinion that the circumstance was immaterial. The invalidity of the process cannot depend upon the fact whether the execution could have been collected out of personal property. The law prescribes the form of the execution, and it would be extremely dangerous to make the validity of an execution which omits a material provision, designed for the benefit of the defendant, to depend upon an inquiry whether any actual injury resulted from the omission. The present case, though less striking, is in principle the same as if an execution upon an ordinary judgment in personam directed its collection out of the real property of the defendant, omitting all reference to personal property. The case is a hard one for the purchasers, but we see no answer to the motion to set aside the sale.
The order should be affirmed.
All concur.
Order affirmed.