The appellants, as to the fourth point, say: " The lien of the Lewis judgment expired on the 14th of May, 1862, two years from the date of its being docketed, and could not be extended by appeal. The case of Dewey v. Latson , 6 Cal. 130, is not law. (Practice Act, Sec. 204; Chapin v. Broder , 16 Cal. 104; Isaacs v. Swift , 10 Cal. 82; Castro v. Ellis, 13 Texas, 229.)" In this State there is " but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs." (Practice Act, Sec. 1.) " A judgment is the final determination of the rights of the parties to that action or proceeding, and may be entered in term or vacation." (Practice Act, Sec. 144.) Under the two hundred and forty-sixth section of the Practice Act as it stood before the Act was amended in eighteen hundred and sixty, " in an action for the foreclosure or satisfaction of a mortgage of realproperty, or the satisfaction of a lien or incumbrance upon property real or personal," the Court could render judgment for the amount found due upon the personal obligation, and by its judgment direct a sale of the property, or any part of it, and the application of the proceeds to the payment of the amount due on the mortgage, lien, or incumbrance, with costs and execution for the balance. (Rollins v. Forbes and Wife , 10 Cal. 299; Rowe v. Table Mountain Water Co. , 10 Cal. 44; Rowland v. Leiby , 14 Cal. 156; Cormerais v. Genella , 22 Cal. 116; Chapin v. Broder , 16 Cal. 422.) In all such actions, a judgment so rendered, when docketed, becomes a lien upon all real property owned at that time by defendants, or either of them, in the county, or that may be acquired by them in the county where such judgment is docketed. (See authorities last quoted.)
It is conceded by appellants, on agreement, that it is a judgment of such a character as, when docketed, would be a lien on real property in the county. We therefore submit, that the judgment in the case of Lewis v. Covillaud and Nye became and was, on the 14th day of May, 1860, the day it was docketed, a lien uponall real property then owned by them or either of them, or that they or either of them might acquire thereafter, within the lifetime of the judgment, in that county. The appellants contend that that judgment lien had expired by limitation; and to reach that conclusion, have argued at great length two propositions:
1st. Can the lien of a judgment be extended by appeal?
2d. If it can, was the lien of the judgment in Lewis v. Covillaud and Nye extended by the appeal in that case, or otherwise?
In discussing the first proposition, we shall assume that the appeal in the case of Lewis v. Covillaud and Nye stayed execution. If the execution was stayed, the Supreme Court of this State, in the case of Dewey v. Latson , 6 Cal. 130, has answered the appellants' proposition in the affirmative. The appellants contend that if the judgment by the appeal was stayed as to property ordered to be sold, it did not stay execution for the moneyed demand. That the undertaking not being in double the amount of the moneyed demand, Lewis could have ignored the order of sale and proceeded by execution. If to stay execution in such a case it be necessary to give an undertaking in doublethe amount of the moneyed demand, as contradistinguished from the undertaking required by section five hundred and fifty-two, it would equally require the giving of a second three hundred dollar undertaking for costs. To carry out appellant's proposition, predicated upon his theory that Lewis had two separate and distinct judgments that were in nowise dependent upon each other, it would require four undertakings on appeal to stay execution. There would be the three hundred dollar undertaking for costs on the foreclosure judgment, and the undertaking required by section five hundred and fifty-two to stay the decretal order. There would then have to be a second three hundred dollar undertaking for costs on the moneyed judgment, and then one in double the amount of the moneyed demand. A construction followed to its logical conclusion, that leads to such a complex system of bonds, cannot be the true one as against a more simple and equally effective one. The appellants seem to have forgotten that in this State we have but " one form of action," and that in that action the Court by its final judgment can grant legal and equitable relief as the facts in that action warrant. As there is butone action, whether it be for legal or equitable relief, or both, there can be but one final judgment in favor of any one party as against the other. In the language of the Act, " a judgment is the final determination of the rights of the parties in the action or proceeding." It includes equitable as well as legal rights; and the Court may grant, except in case of default, " any relief consistent with the case made by the complaint and embraced within the issue." (Practice Act, section 117.)
Section two hundred and forty-six of the Practice Act, under which the Court rendered judgment in the case of Lewis v. Covillaud and Nye, reads: " In all actions for the foreclosure of or satisfaction of a mortgage of real property, or the satisfaction of a lien or incumbrance upon property real or personal, the Court shall have power by its judgment to direct the sale of the property or any part of it, the application of the proceeds to the payment of the amount due on the mortgage, lien or incumbrance, with costs, and execution for the balance ." (Wood's Dig. p. 200, Art. 980.) Under that section we submit, that a judgment creditor could not proceed to enforce his judgment by executionupon an action indicated by that section, until the encumbered premises had been sold. In all such cases it matters not whether the judgment was as in Rollins v. Forbes, or as in Moss v. Flint et als., upon which the Freaner claim was predicated in the Chapin v. Broder case. Execution, by the terms of that Act, would be stayed until the sale of the property upon which the lien was established. The statute states when an execution may issue on such a judgment, and by implication denies the right to enforce the judgment by execution at any other time. Expressio unius est exclusio alterius. (Zander v. Coe , 5 Cal.) Appellants admit that the appeal stayed the sale of the premises; and if our construction of the Act be correct, it follows that execution for the moneyed demand was stayed until the legal impediment was removed by sale or otherwise.
JUDGES: Sanderson, C. J.
OPINION
SANDERSON, Judge
By the Court, Sanderson, C. J., on petition for rehearing.
So far as the character and legal effect of the judgment in Lewis v. Covillaud and Nye are concerned we have announced no new principle, but have merely applied to the facts of this case principles which were established in Rollins v. Forbes, Rowland v. Leiby, and in Chapin v. Broder, cited in our former opinion. The following principles are established by those cases: In a foreclosure case the plaintiff may recover a personal money judgment and a decree foreclosing the mortgage and directing the land to be sold for the purpose of satisfying that personal judgment; and secondly, if he does not obtain a personal judgment, but contents himself with the decree in use under the old chancery practice, such decree does not become a lien, under the two hundred and fourth section of the Practice Act. On the contrary, no lien attaches under such a judgment until after a sale has been had and the deficiency, if there be one, is ascertained and docketed, and then only for the amount of such deficiency. This twofold judgment is the fruit of our system of practice and beautifully exemplifies its superiority. Under the old system two suits would have been necessary in order to accomplish the same result. The result being accomplished the plaintiff might, under the old system, proceed by fi. fa. upon his judgment at law, or he might proceed under his decree in equity, but he could not proceed upon both at the same time. The same is true under our system. Where a personal judgment is rendered at law, so to speak, and also a decree in equity is awarded, the plaintiff may proceed to enforce either, at his election, but he cannot proceed upon both at the same time. Such is the result when the principle announced in those cases is carried to its logical conclusion. When it is said that a personal judgment may be rendered in foreclosure cases the right to enforce the same by fi. fa. is necessarily implied. A judgment which cannot be enforced is no judgment at all, and we know of no way by which a mere money judgment can be enforced except by fi. fa. The decree in such a case is enforced by the Sheriff or Commissioner under a certified copy. The hypothesis from which counsel argue that in such a case there is but one judgment with different members merely, bearing a dependent relation to each other, is unwarranted. The true theory upon which the question under consideration proceeds is to the effect that there are two judgments, either of which may be enforced regardless of the other, with the qualification that they cannot both be enforced at the same time, and that the satisfaction of one is the satisfaction of the other. When the late Supreme Court said that a personal judgment might be rendered " against the mortgagor in addition to the relief usually granted in such cases," they meant a judgment which could be enforced by fi. fa., or they meant nothing. Hence we held in our former opinion, and still hold, that where the plaintiff takes this double judgment he may, at his election, proceeded by fi. fa. upon his money judgment or he may proceed to make his money by a sale of the mortgaged premises under his decree.
In this connection it is proper to remark that counsel have fallen into this fundamental error. They assume and argue that if A. gives B. his promissory note, and mortgages his land to secure its payment, B. thereby agrees to look to the land as a primary fund for the payment of his debt, and A. has the right to insist that he shall do so. We know of no such rule either at law or in equity. The mortgage is made for B.'s security and not for A's protection. By taking security B. does not waive A.'s personal liability either in toto or pro tanto. B. may waive the security at any stage and proceed upon the personal liability created by the contract. (Of course, we limit this doctrine to cases where the rights of third persons are not involved.) This error seems to have become an ignis fatuus by which counsel have been misled through their whole argument. By its light they have sought to construe the judgment in Lewis v. Covillaud and Nye, and the result is such as might have been expected--a nondescript judgment with a single head, but Janus-faced, characterized by counsel as " in personam et rem ." Counsel will not admit that there was no personal judgment, but claim that, although there was a personal judgment, it could not be enforced except through the decree of foreclosure. This is blowing hot and cold. It is tantamount to saying that there is a personal judgment and there is not.
The cause of this tergiversation is apparent. In Chapin v. Broder it was held that where there was no personal judgment there could be no lien, under the two hundred and fourth section of the Practice Act, until after a sale of the mortgaged premises and the docketing of the deficiency. To admit, therefore, that there is not a personal judgment is to admit that there is no lien, which is the sole question in controversy in the present case. Hence, in order to maintain their standing in Court, counsel are compelled to insist that there was a personal judgment. Then, having fortified themselves against Scylla upon the one hand, they are forced to guard against Charybdis on the other; but in order to do the latter they cannot admit that the personal judgment carries with it the right of a fi. fa., for there is no appeal bond which stays its execution, and more than two years have elapsed since the judgment was docketed, and the lien is therefore lost. Hence they claim a personal judgment which cannot be executed until after a sale under the decree, and then only to the extent of a deficiency, should there be one--a judgment, when considered as a personal one, confessedly felo de se in part, and perhaps in toto. It is a misnomer to call a judgment which has such incidents annexed to it a personal judgment. It is nothing more than the old chancery decree.
In support of the theory that the personal judgment is not full fledged, counsel call attention to the fact that it does not terminate with the ordinary phrase " for which let execution issue," and that nothing is said about the issuing of an execution until we come to the end of the decree, where the issuing of an execution, for any deficiency which may be found to exist, is authorized, and that therefore the judgment, by its own terms, is made to prescribe the order of its own execution, and that the order thus prescribed cannot be departed from except by special license of the Court. Admitting this to be so, it is not a little surprising that counsel do not perceive that a consequence must follow which is fatal to their case, by destroying entirely the judgment lien, upon which alone they rely. By this construction the money part of the judgment is made dependent upon the decree for its enforcement, and the mortgaged premises are made a primary fund, which must be exhausted before a fi. fa. can issue. Thus the judgment is provided with a special lien, resulting from its own terms. To such cases the two hundred and fourth section does not apply. That section creates no additional lien where one already exists, until after the special lien has been exhausted, and then only to the extent of the deficiency. It was so held in Chapin v. Broder. That section was intended to secure a lien only for such judgments as are purely money judgments, without any lien resting in contract, or in other words judgments which are to be enforced by fi. fa. Thus, only theory upon which it can be claimed that the judgment in Lewis v. Covillaud and Nye became a lien under that section is the one which we have adopted, to the effect that there was a personal money judgment, so far independent of the decree that it could, at the election of the plaintiff, be first enforced by a fi. fa. That there was such a judgment we have no doubt. The mere fact that it did not conclude with the phrase " for which let execution issue," has no significance. That phrase is unnecessary. It is of the form and not the substance. The judgment being pronounced by the Court, the law, ex proprio vigore, directs the final process to issue. That there was such a judgment, in the opinion of the late Supreme Court also, is apparent from the judgment which they rendered on the appeal, which is in these words: " Our conclusion is, that as to the lien, the judgment should be reversed, but that in other respects it should be affirmed." That is, so far as the decree is concerned the judgment is reversed, but as to the personal judgment it is affirmed. Under this personal judgment, as we held in our former opinion, the respondent acquired a lien, but he failed to enforce it within the two years through which it extended. It was not suspended during the appeal, for the obvious reason that no undertaking on appeal from the personal judgment was given, as required by the three hundred and forty-ninth section of the Practice Act.
Rehearing denied.