Both parties claim through Sanders & Brenham, who owned the locus in quo in 1855, and until the title passed by-sale under judgments against them—either by a sale under Martin’s judgment, under which plaintiff claims, or under Massett’s judgment, through which defendant derives title.
The expressed findings in this case, in view of the evidence, are so meagre as to be worthless for the purposes of determining the rights of the parties. The findings not expressed, under the statute as it now stands, must be presumed to be such as to support the judgment. The Court must, therefore, have found that the defendants had a prior lien in some form. In the motion for new trial, the plaintiff, in a very loose form, it is true, specifies substantially as a ground for a new trial, that the Court should have found upon the evidence the prior unexpired lien to have been secured by Martin by an actual levy, cither under his attachment, or his execution of November 22d, 1855; whereas the prior unexpired lien was found to have been secured by Massett, and that in this respect the findings are unsupported by the evidence. Although the ground is not so well specified as it might have been, I think plaintiff" entitled to have it considered. Martin’s judgment was docketed November 22d, 1855, and thereby became a lien for two years from that day. Massett’s judgment was docketed on the 19th of November, 1855, and continued a lien for two years. Massett’s judgment, by virtue of its being first docketed, became the first judgment lien under section two hundred four of the Practice Act. But no sale took place under either judgment within two years after being docketed, and the respective liens of the judgments thus acquired were lost. Executions were issued upon both judgments, and levied within two years, but this does not extend the liens of the judgments—that is to say, the liens acquired by the mere docketing of the judgment, under section two hundred *141four, supra, beyond the two years, as was correctly held, I think, in Isaac v. Swift, 10 Cal. 81. An execution was issued on the judgment in the case of Martin v. Sanders Brenham, on the 22d of November, 1855, which execution was levied on the lot in question, by the Sheriff, on the 23d of November, 1855, and the property duly advertised for sale; but the sale having been stayed by a restraining order of the Superior Court, the Sheriff returned the writ, with his doings indorsed thereon, with a statement that he refrained from, selling in consequence of the injunction. On the 24th of November, 1855, an execution issued on the judgment of Massett v. Sanders & Brenham, which was also levied on the same lot, the property advertised, and the execution returned without a sale, for similar reasons. The first actual levy made under execution was, therefore, under Martin’s execution. A second execution was issued on the Massett judgment on the 19th of November, 1857, and levied on the same lot, which the Sheriff afterward, on the 10th of December, 1857, sold to James C. Ward. Defendant claims title under this sale. Another execution was issued on the Martin judgment on the 30th of April, 1858, under which the Sheriff sold said lot to Q. F. Sharp, under whom plaintiff derives title. The first sale was, therefore, made under the Massett judgment, and upon the first execution issued and levied after the expiration of the lien created by docketing the respective judgments. The question arises on this state of facts, whether a distinct and independent lien can attach to real estate by virtue of an actual levy of an execution upon land upon which the judgment, under which the execution issued, is, by virtue of its being docketed, already a lien, and if so, whether the lien so acquired by a levy expires with the docket lien. The case of Isaac v. Swift does not touch this question. In that case it was held, not that no new independent lien could be created by a levy, dating from the levy, but only that a levy did not extend the judgment or docket lien, which had before attached. The second judgment lien in that case attached before the levy under the *142execution issued on the former judgment, and the question was between the two judgment liens, and whether a levy extends the first judgment lien beyond the time prescribed by the statute, and it was very properly held that it did not. The case of Wood v. Colvin, 2 Hill, 229, is relied on to show that no new independent lion is created by a levy, when the judgment is a lien, but the case does not, in any respect, touch the question. The question in that case was, whether it was absolutely necessary to make an actual levy under the execution, in order to entitle the party to sell, where the docketing of the judgment creates a lien. And it was held that a levy was not necessary to a valid sale, or to give effect to the judgment lien thus existing. The judgment being a lien already, the execution issued upon it empowers the Sheriff to sell the property thus already in the custody of the law. But whether it is necessary to levy in order to enable the party to reap the fruits of a judgment and docket lien already attached, and whether a party may levy and thereby secure a neto, independent, more specific, and under some circumstances more valuable lien than his general docket lien, are entirely different questions. The case cited only goes to the first question. It is said that the lien created by docketing the judgment under the statute—the judgment lien, as it is commonly called—is of a higher nature than the lien by levy, and that the latter, therefore, merges in the former. But I apprehend this is a mistaken notion. On the contrary, if there is any difference, the lien by levy is of the higher nature. The lien by levy is specific, takes bold of the specific piece of property by specific acts for the purpose of appropriating it to the specific purpose, while the judgment lien is general and by mere operation of law, without any specific act directed to any particular piece of property, or the manifestation of any intention of the creditor to hold a lien on the specific property, attaches itself, generally, to all lands within the county that may come to the judgment debtor within two years after the judgment is docketed, without reference to any intent of the creditor *143to apply it in satisfaction of the debt. “A judgment is considered there [in England] only a general security, not a special lien on the land. (Finch v. Earl of Winchelsea, 1 P. W. 279.) Here that part only of the real estate which has been attached is bound; and I see no reason why the lien acquired by attaching a particular piece of land should not .be considered as much a specific lien as if acquired by the voluntary act of the parties.” (Carter v. Champion, 8 Conn. .559.) “A judgment is a general lion on all the defendant’s property; an execution specific—a seizure of lands into the officer’s hands to satisfy the debt; a pledge somewhat in the nature of a mortgage, and is so considered in bankruptcy.” (Commonwealth v. McKisson et al., 13 S. & R. 146.) Our statute expressly recognizes this distinction, and gives the judgment creditor greater rights when an actual levy has been made, than where there is none—thus making a lien by levy more valuable than a mere docket lien. “When any judgment has been rendered against the testator or intestate" in his life, no execution shall issue thereon after his death; but a certified copy of such judgment shall be presented to the executor or administrator, and be allowed and filed, or rejected, as any other claim, but need not be supported by the affidavit of the claimant, and, if justly due and unsatisfied, shall be paid in due course of administration; provided, however, that if the execution shall have been actually levied upon any property of the deceased, the same may be sold for the satisfaction thereof, and the officer making the sale shall account to the executor or administrator for any surplus in his hands.” (Probate Act, Sec. 141.) Thus on a mere money judgment recovered in the lifetime of the deceased no execution can be issued after his death, whether the judgment is a lien or not, for no execution is allowed to issue. It can only he paid “in due course of administration,” But when a specific lien has been acquired by an actual levy of the execution, upon property, “the same may be sold for the satisfaction thereof.” Thus the specific lien of an actual levy is regarded by the statute, as it is, in fact, of a higher *144nature than a general judgment lien. And a party is entitled to obtain the most advantageous lien that the law can give him.
In Wood v. Colvin, 5 Hill, 230, Mr. Justice Bronson said: “After lands were subjected to sale on execution, and before the judgment was made a lien, the sale of lands and of goods on execution stood substantially on the same footing, and a levy or seizure was necessary in the one ease as well as in the other. But when the judgment was afterward made a lien on the land, there was no longer any reason for requiring a levy before the Sheriff proceeded to advertise and sell.” That is to say, not necessary for the purpose of giving effect to and enforcing the lien already in existence, for this was all that was under consideration. But it does not follow that he may not acquire a new and different lien, notwithstanding there may be no necessity for it, so far as power to sell within the time of the docket lien is concerned. Under this authority, a levy did create a lien, when necessary to be made for any purpose, and such is an incident of every seizure in any mode recognized by law. The ordinary effect of a levy under any process is well stated by the Court in Stauffer v. Commissioners, 1 Watts, 300, where a transcript for taxes was put on the footing of a judgment, as to the creation of a lien, and it was insisted that no lien could be created by levy on a house and- lot other than that created by the statute. The Court say: “And why should not the seizure create the same lien which is incident to every process of execution at the common law? Because, say the subsequent creditors, there can be no other lien than the one created by the Act of Assembly. That lien was created to enable the Commissioners to indulge the delinquent for the period limited, without jeoparding the debt, and to give them time to take such measures as might be reasonable, in order to turn the property to the best account, but not to provide the securing of it after seizure. For that purpose a lien is a necessary and inseparable incident of seizure in execution, by the principles of the common law. Property levied is in the custody of the law, the end of which *145might he prevented if creditors could subsequently acquire a paramount interest in it. In regard to chattels, this undoubtedly holds, so far as to afford the creditor an opportunity to obtain satisfaction, by a reasonable pursuit of his remedy; and it equally holds, in respect to land, which, with us, is a chattel for the payment of debts. The lien of a testatum, execution has no other foundation; and, as regards the expired lien of a judgment, within the county, it is not to be doubted that an execution levied would, under the same limitation, create a new lien, though it may not, under the last Act of Assembly, continue or extend the old one. By this is meant that the levy would protect the property for a reasonable time, under the process of execution. That case is strictly analagous to the present, in which, though intervening incumbrances would come in between the expiration of the original lien, yet the incidental lien of the latter is not to be displaced by subsequent incumbrances, without gross delay on the part of the Treasurer in the prosecution of the remedy.” (P. 301.)
It is clear to my mind that, without any statutory provision affecting the question, except the adoption of the common law, as modified and in force at the time of the settlement of the United States, an actual levy would create a lien, and in the above extract it is expressly said that, “as regards the expired lien of a judgment within the county, it is not to be doubted that an execution levied would, under the same limitation, create a new lien, though it may not, under the last Act of Assembly, continue or extend the old one.” Unless there is something in our statute changing the effect of an actual levy on lands, or inconsistent with this idea, that an actual levy made while there is already an existing docket lien, creates a new, independent, specific lien of its own, not independent of the judgment, it is true, hut independent of the general lien created by the judgment proprio vigore, under the statute, at the moment it is docketed—then a specific lien is still a necessary incident to a levy. If there is any*146thing limiting the effect of a levy in our statute, it has not been pointed out, and it has escaped my researches. The contrary is, to my mind, clearly manifest. In the first place, the judgment is only made a lien from the time when it is docketed, and it is to continue only two years, (Prac. Act, Sec. 204,) while the party having a judgment “may at any time within jive years after the entry thereafter issue a writ of execution for its enforcement; ” (Sec. 209;) and in 1855—when this judgment was rendered—after five years, upon leave of the Court. (Sec. 214.) Thus there are three years, when the judgment is docketed immediately, during which there is no docket lien in which he may have execution for its enforcement. The judgment may never be docketed and never become a lien. At all events, he may have execution before a docket lien is acquired, (Sharp v. Lumley, 34 Cal. 611,) and again after it has expired. In order to its enforcement when there is no judgment lien, a lien must be acquired, and this can only be done by levy. “All * * * property, real and personal, of the judgment debtor * * * shall be liable to execution. Until a levy, property shall not be affected by the execution.” (Sec. 217.) This includes real as well as personal property. Heal property may be affected by the judgment lien without the actual levy, but not “ by the execution” “ until a levy.” The execution refers to the judgment, and if it be for money, requires “ the Sheriff to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of his real property; or, if the judgment be a lien upon real property, then out of the real property belonging to him on the day when the judgment was docketed,” etc. Thus it is expressly contemplated that there' may be real property upon which there is no judgment lien, and other real property upon which there is a judgment lien. We find, then, from these extracts from the statutes, that executions are to be issued and enforced against real estate, as well as personal property, both before any judgment lien has attached and after it has expired; that property is not to be affected *147“by the execution until a levy, ” that the execution requires the Sheriff to satisfy the judgment out of the property of the judgment debtor, whether there is a judgment lien or not. A levy is expressly recognized in terms. There must be some time when the right of the creditor attaches under the execution, and that is when a levy is made. If a levy creates a specific lien upon the property before a judgment lien attaches, or after it expires, why is not the same act followed by the same consequence when performed while there is a judgment lien? It may be unnecessary ordinarily; but there can be no harm in it, and under some circumstances it may be important. The two classes of liens are not inconsistent; they are not of the same character, are not created in the same manner, and are not followed by the same consequences —are not legally identical. Each is governed by the law of its own creation, and depends upon its own peculiar legal principles. There is nothing in the statute, either expressly, or by implication, saying that an actual levy in one case shall not be followed by the same consequence as in the other. And when the law merely gives another, and concurrent remedy, it does not take away a remedy already existing. We cannot say that the policy of the statute is to limit all liens to two years, for no such limitation is prescribed to liens acquired by levy, when there is, at the time, no docket lien in existence. We can only say from this limitation, that the policy is, to limit all docket liens—that is to say, the liens expressly so limited—to two years, and leave other liens to be governed by other principles. The Legislature might well have thought it best to make a distinction between general and specific liens in this respect. It might well be thought a hardship that a lien, without any specific act of the creditor indicating a purpose on his part to subject property to his judgment, should for more than two years bind and clog all the property that might come to the debtor, while it would not be a hardship to continue a lien upon a particular piece of property which the creditor has actually seized, and thereby manifested an intent to hold as his security, allowing all *148the rest to go untouched. One species of lien, without any specific manifestation of intent to appropriate, would hamper all the real estate transactions of the debtor, when the creditor might be perfectly satisfied with that which he had seized. However this may be, it is enough that the Legislature has only limited the general judgment lien, without saying anything about specific liens created by levy. There is another reason why a party should be allowed to secure a specific lien by levy, even while there is a judgment lien in existence. The Sheriff is not permitted to sell without advertising for a period of twenty days. If he should fail to advertise till the nineteenth day before the expiration of the judgment lien, he could not avail himself of his judgment lien, because he could not sell while it would continue alive; while, upon the other view, the fact that he has a judgment would prevent him from securing a lien by levy. There would be nineteen days in which he would be perfectly helpless to prevent any other party from securing a priority. During this time he could do nothing effectual toward enforcing his judgment. He would be practically without a lien, although the statute says he has one. He could, during this time, do nothing toward acquiring a new lien, and he could do nothing toward enforcing his judgment, and the five years for issuing execution and enforcing his judgment would be abridged by construction, against the express provision of the statute giving it to him. Besides, he might be prevented from selling within the two years by a temporary injunction, as in this instance, which would not prevent the expiration of the general judgment lien, and a specific lien, by levy upon a particular piece of real estate, might be necessary to his protection, while it could injure no one. So, again, a judgment debtor might not have any property out of which the judgment creditor could make his money, till nineteen days before the expiration of his two years docket lien, and then, by purchase, or inheritance, acquire real estate, which, during these, to him, halcyon days, he could dispose of at his pleasure, or other younger creditors might seize and appropriate *149it during these same nineteen days, while such elder judgment creditor, who has been waiting and watching for nearly two years, must look on in helpless despair while he is being despoiled, because the law has beneficently given him a docket lien, which it does not allow him to enforce, but which is, nevertheless, efficacious to prevent him from acquiring or enforcing any other.
The ab inconveniente argument to sustain the other view does not appear to me to be entitled to much weight against well settled principles of' law. Nor do I see that there is greater difficulty in ascertaining the coudition of titles than in the case of judgment liens. Under the statute as it now stands, the mode of levying an execution on real estate is prescribed. It “may be attached in execution in like manner as upon writs of attachment,” and the mode, in case of attachments, is particularly pointed out, and the levy made a record in the Recorder’s office. In 1855 the mode of levying an attachment was the same, but nothing was said as to the mode of levying an execution. As an attachment is but a levy before judgment, on a writ of attachment, instead of after judgment on the execution, but for the same ultimate purpose— really the commencement of the execution of final process, the writ of attachment being in effect a part of the process for executing the judgment when obtained—a levy in the mode prescribed for levying attachments would undoubtedly be regarded as sufficient. I am of the opinion that a creditor by an actual levy of an execution on real estate, acquires thereby a specific lien, distinct and wholly independent of-any general lien acquired by operation of law by the mere docketing of the judgment, which new lien is in no way affected by the expiration of the docket lien. And independent of fraud, or some provision of law to the contrary, which has not been brought to my notice, I do not see why it does not continue until the judgment is satisfied, or becomes itself barred or dormant, by the lapse of five years time. After the expiration of five years from the entry oí judgment, the lien loses its vitality of course, for the jndg*150ment is dead, and incapable of enforcement. There is nothing left to support the lien.
Generally, so far as my observation extends, this has not been a practical question in the older States under former statutes, for the reason that judgment liens, and the vitality of the judgments themselves, upon which they depended, extended over the same period of time. The lien and the judgment ran together,, and expired, or became dormant together. But under our statute, where different periods are established for the enforcement of the judgment, and the continuance of the general judgment lien, the question becomes both practical and-important.
It is insisted that if Martin acquired a lien by virtue of the levy on November 23d, 1855, the sale was not made on that execution, or by the same Sheriff, Scannell, but on another execution issued to Doaue, successor to Scannell, who levied his own execution, and sold only such interest as he himself seized; that the two Sheriffs were not in privity, and that Doane had no power to sell an interest seized by Scannell on another writ. Neither party has collected the authorities on this point. It is undoubtedly true, that, when a levy has been made during the life of the execution, and the execution returned with the levy indorsed, the officer who made the levy may afterward go on and sell after the return day of the writ, and even after his term has expired. (McFarland v. Gwin, 3 How., U. S., 717.) So when an attachment had been levied on real estate and returned, and the judgment was not entered, or execution issued till after the expiration of the term of the officer, the execution was finally issued to, and the sale under it made after the expiration of his term by the officer who levied the attachment, it was held under statutory provisions substantially similar to our own, that the writ was properly issued to the old Sheriff, and the sale well made. (Am. Exch. Bank v. Morris Canal Company, 6 Hill, 366.) This is on the principle that the Sheriff commenced the execution of process for enforcing the judgment, when he obtained a lien by levying the *151attachment before judgment, and that, the party who commences the execution of process is empowered and entitled to complete it. Thus the attachment is practically regarded as part of the process for the execution of the judgment. It does not necessarily follow, however, that the sale would not have been valid, had the execution been directed to, and executed by, the new Sheriff. Ho authorities have been cited by counsel to the effect that it would not have been valid. The only writ to be issued after judgment, prescribed by our statute for enforcing a judgment for money, is an execution. It commands the Sheriff, as we have seen, to satisfy the judgment out of the property of the judgment debtor. Beal estate cannot be taken into manual possession. It must, from the nature of things, be seized by some declaration or notice evidenced by matter of record. It is thus taken into the custody of the law, rather than of the officer. It is permanent in its location and character, and the evidence of the levy must be by matter of record only. When the levy has been made the lien attaches, and, through the execution—not the judgment docket—connects itself with the judgment, and when the execution is returned with the levy indorsed, and the proper notice has been given and filed where such proceedings are required, the levy becomes matter of record, of which all must take notice. Suppose a second execution issues, as seems to be a common and long established practice in this State, and is delivered to a succeeding Sheriff, and he sells the land under the judgment, and in pursuance of the commands of his writ. I do not see why he would not perfect the lieu before acquired into a perfect title. The first levy impressed a lien upon the land, and, through the execution authorizing the seizure, connected it with the judgment, and under the second execution the land was sold and the title passed. The property was the property of the debtor, subject to the creditor’s lien, and the debtor’s property is what the Sheriff, under the second writ, was commanded to sell. The land, through the specific lien of the levy, was in the custody of .the law for the satis*152faction of the judgment, and the execution and the Sheriff were the instruments of the law for effecting the sale and working out the satisfaction. In the case of an attachment the sale is not upon the same writ as that under which the levy is made, yet the sale on execution subsequently issued must be valid. It is in the same suit, and the levy connects the lien with the judgment, through the writ of attachment, and the sale, under another and different writ, perfects the lien into a title. Why do not the same results follow when the levy is on a different execution in the same case ? The several acts are part of one entire proceeding, and the several instruments and the doings evidenced by them are parts of one entire record.
In the case of personalty there might be some difficulty in consequence of want of possession, but I do not perceive why a valid sale could not be thus effected of realty, or even of personalty, provided the old Sheriff should turn over to his successor, having a new writ, the possession of the property already seized. It may be that the Sheriff, by the terms upon which he makes the sale, and the terms of his certificate of sale, and his deed, might in fact limit, his sale to such interest as he himself seized. But in this case the record says he sold the lot, not any particular interest seized by him, and conveyed the lot so sold under the respective executions named. While the regular mode, under the general rule of the common law, would have been for the former Sheriff to have completed the execution of the process commenced, I think, upon the fact as now presented, the sale by Doane was well made, and perfected the lien created by the former levy into a title. If I am correct in this, the lien under the first execution issued on the Martin judgment, is prior to the defendant’s lien under the Massett judgment, and the Court was in error in finding the latter to be prior.
I do not think, upon a proper construction of the return, that the levy should be regarded as released. The officer does not manifest any intention in his return to release his levy. A perpetual injunction might, perhaps, be regarded *153as discharging a levy, but if this be so—for it is unnecessary now to decide the question—I see no reason for holding-a levy discharged by a temporary injunction, which may be dissolved on motion, or on a final hearing.
The deed of January 29th, 1862, was improperly admitted in evidence, both under the stipulation and the settled rule in this State. The legal title conveyed by it was not in defendant when the action was brought. If it took effect so as to pass the title by relation at the time of the sale, the acts by which the title was in fact acquired accrued after the commencement of the suit, and it was necessary to plead it by supplemental answer. (McMinn v. O’Connor, 27 Cal. 247; Moss v. Shear, 30 Cal. 472.)
As to the Martin attachment, the Court does not state directly whether a levy was found or not, and under the view we have taken it is unnecessary to determine whether there was a levy or not. But if a levy was made, I do not perceive upon what principle the specific lien thus acquired merged in the judgment lien, as claimed. The statute provides that plaintiff, in a proper case, “may have the property of defendant attached as security for the satisfaction of any judgment that may be recovered”—not till he can get a judgment lien. The attachment is really a levy in advance of the judgment, as we have seen, and the lien acquired is specific. It is acquired by actual seizure, not by mere operation of law. It might be enforced by sale; under execution after entry of and before docketing the judgment. It is superior, rather than inferior, to the general judgment lien. I apprehend that a lien acquired by an actual levy, under an execution made before the judgment is docketed, would neither be lost, merged, nor modified by the subsequent docketing of the judgment. The principles before announced would apply. And I see no reason why the same principle should not apply with respect to a lien acquired by an actual levy under an attachment.
The sale under the Massett judgment by Sheriff Doane *154while an injunction was in existence against the creditor and the former Sheriff, is not void. If the sale was made in violation of an injunction, the Court might perhaps have vacated the sale, upon a direct application made in the case at the proper time, on that ground, and the parties would be liable upon proceedings for contempt. But the sale is valid on a collateral attack.
It is quite evident that the case was not tried or decided in accordance with the principles .expressed in this opinion. I am of opinion, therefore, that our former j udgment was correct, and that the judgment should be reversed and a new trial granted.