Stout v. Macy

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action brought by a judgment defendant to enjoin all proceedings upon an execution issued on the judgment. On the eighth day of June, 1852, Falconer & Moulton obtained a decree in the usual form for the foreclosure of a certain mortgage, and the sale of the mortgaged premises, against the plaintiff, Stout, and others. The decree stated the amount due to the plaintiffs, and directed that the mortgaged preñases be sold, that the amount due be paid from the proceeds of the sale, and that, if the same were insufficient, execution issue against the defendant Stout, for the balance. This judgment was purchased by and assigned to the defendant’s testator, but no execution to enforce the decree was ever issued until a short time before the commencement of this suit, in May, 1862. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action; the demurrer was overruled, and no answer having been [650] filed, a final judgment was rendered for the plaintiff, enjoining all proceedings to enforce the judgment or execution, and the defendant appeals. The principal question is, whether an execution can issue after the lapse of five years from the entry of a judgment rendered in an action to foreclose a mortgage. A judgment for the foreclosure of a mortgage and the sale of the mortgaged premises is governed by the same rules as other judgments, both as respects the Statute of Limitations of actions thereon, and the time within which execution for their enforcement can be issued. The Practice Act makes no distinction between judgments of that kind and others of a different character. All are treated alike. This Court has held that ' sales under executions issued on such judgments are subject to redemption, as in other cases. (Kent v. Laffan, 2 Cal. 595; McMillan v. Richards, 9 Id. 365; Guy v. Middleton, 5 Id. 392; Harlan v. Smith, 6 Id. 173.) Thus the principle that judgments for the foreclosure of mortgages are governed by the same rules as other judgments has been recognized by this Court. Sec. 209 of the Practice Act limits the time within which an execution can issue for the enforcement of a judgment to five years from the entry of the judgment, and this applies to judgments of this kind, the same as others. Sec. 214 allowed executions to issue after that date by a special order of Court, but that section was repealed in 1861, and that right, therefore, no longer exists. The defendant in this case had lost his right to an execution to enforce the judgment by the lapse of time, and the Court below properly rendered judgment against him. The judgment is therefore affirmed.