1. The judgment in the action of Hibberd v. Chipman and Aughinbaugh was docketed in such a manner as to constitute a lien on the real property of the defendants therein. The statute required that the names of the defendants should be entered in the docket in alphabetical order. (Pr. Act, Sec. 205.) It was evidently intended that the surnames should precede the Christian names, and the omission of the Christian name of the defendant Chipman did not deprive the docket of its useful function of directing *518the attention of those interested to the existence of a judgment, and to all its incidents.
2. As against judgment creditors of W. W. Ghipman, his deed to E. S. Ghipman was not delivered until after the Hibberd judgment was docketed.
3. Under the practice in chancery—except in cases of strict foreclosure, when the decree deprived the mortgagor of his right to redeem—the decree of foreclosure operated in rem, and directed a sale of the mortgaged premises. Such decree did not possess the qualities of a judgment in an action at law, on which execution could issue, to be levied on the general property of the mortgagor. But, by section 246 of the Practice Act of 1851, it was provided: “In an action for the foreclosure or satisfaction of a mortgage of real property, etc., the court shall have power by its judgment to direct a sale of the property, or any part of it; the application of the proceeds to the payment of the amount due on the mortgage, etc., with costs, and execution for the balance.”
In entering the judgment in Hepburn v. Chipman, the form was adopted which is provided for in the statute just quoted.
This judgment is substantially like those of Drexel, Sather & Church, and Freaner, as the judgments in those two cases were assumed to be in the original opinion of the Supreme Court in Chapin v. Broder (16 Cal. 403). There the court declared (p. 421) the question to be, at what time did the lien of such a judgment attach: when it was docketed, or when a deficiency was ascertained by the return of the sheriff after sale ? After saying that the court had previously held that the statute authorized a personal judgment against the mortgagor, and that in case of such personal judgment its docket would make it a lien, the opinion in Chapin v. Broder proceeds: “It is obvious, however, that nothing but a judgment establishing a definite personal liability can have this effect. A mere contingent provision, referring to no particular amount, and in abeyance until the contingency is determined, is not within the meaning of the statute. It may' become a valid and perfect judg*519ment; but until the amount to be recovered is ascertained and fixed, no effect can be given to it as a lien.” The original opinion in Chapin v. Broder determined that cause on the proposition, that, inasmuch as in the case of Drexel, Sather & Church, the report of deficiency was filed before the like report was filed in the Freaner case, the former acquired the older lien, notwithstanding the fact that Freaner’s judgment was first docketed.
It is true, that in the opinion delivered on the petition for a rehearing, it seems to be admitted that the court had received from the report of the referee an erroneous impression in respect to the character of the judgment of Drexel, Sather & Church. But it is there reasserted that the judgment of Freaner created no personal liability, except for the payment of the deficiency; and the result is, that what was said in the original opinion in respect to the time when the lien would attach in case of such judgment, was left undisturbed by the opinion delivered on the petition for rehearing.
It is also true that in the opinion last mentioned, it is intimated that even in case of judgment against the mortgagor personally, the limitation on the lien would not commence until the deficiency was ascertained. But this has been overruled in Englund v. Lewis (25 Cal. 350), and in other cases.
We see no reason ior departing from the rule, as laid down in Chapin v. Broder, and, therefore, hold that on the return of deficiency in the action of Hepburn v. Chipman, a lien attached on all the real property of the defendant therein within the county. ,
4. The execution offered by defendants, although irregular, and defective in form, was amendable and not void. The court below, therefore, erred in sustaining plaintiff’s objections. That this error injured the defendants, sufficiently appears from what has been said in regard to the lien of the Hepburn judgment.
5. H, as has been suggested in argument, the rights of Hibberd and Duncan, under the latter of whom defendants deraign, were adjudicated in a former action, the proof of *520such former adjudication can probably be made by way of rebuttal when this cause shall be retried in the court below. The fact does not appear from the record before us, and cannot now be considered.
Judgment and order reversed and cause -remanded for new trial.