CHAPTER 7.

LIEN OF ALIMONY.

622. Nature of lien.

622. Nature of Lien.

Where a divorce is granted a wife for an offense of her husband, any alimony which may be awarded the wife by the court in which the divorce action is pending may, at the discretion and by the order of the court, be constituted a lien against the community property of the parties, or in default thereof against the separate property of the husband.1

1 Compare the following sections of the Civil Code: Section 139: "Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make suitable allowance to the wife for her support."

Section 140: "The court may require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case.'

Section 141: "In executing the five preceding sections the court must resort.

(1) to the community property; then,

(2) to the separate property of the husband.

"The statute [that is, Civil Code, section 140] ought not to be construed as abridging the power exercised by courts having cognizance of matrimonial causes-commonly, though not always, as a branch of their chancery jurisdiction-to declare a lien for securing the award of support to the wife in such cases."'

"Moreover, the divorce being upon the grounds of extreme cruelty, the court was authorized to assign the community property to the parties in such proportion as, under the circumstances, seemed just (Civil Code, section 146); under this section it had the power to assign to the wife the absolute property in the land in question, and this included the power to charge a lien on the same': Gaston v. Gaston, 114 Cal. 542, 546, 55 Am. St. Rep. 86, 46 Pac. 609.

Where a divorce is granted a wife on the ground of extreme cruelty, the court may probably declare the alimony, maintenance, etc., granted her a lien upon the separate property of the husband which the husband has fraudulently conveyed: Huellmantel Huellmantel, 117 Cal. 407, 410, 49 Pac. 574.

V.

CHAPTER 8.

JUDGMENT LIENS.

Subdivision 1. Lien of Superior Court Judgment in County Where Judgment Rendered.

Subdivision 2. Lien of Superior Court Judgment in Other Counties.

629. Judgment lien not provable by parol. 630. Computation of time of limitation of lien. 631. Lien not affected by division of county. 632. Property not twice lienable under same judg

ment.

633. Cannot accrue against property of decedent or bankrupt.

634. Liened property not subject to independent levy.

635.

636.

Attachment merged into judgment lien.
Enforcement.

Subdivision 1. Lien of Superior Court Judgment in County Where Judgment Rendered.

623. Accrual of Lien.1

From the time a judgment of a superior court is duly docketed in the docket2 kept by the clerk, the judgment, if docketed during the lifetime of the judgment debtor, constitutes a lien against

1 Code of Civil Procedure, section 671, provides in part: "Immediately after filing the judgment-roll, the elerk must make the proper entries of the judgment, under appropriate heads, in the docket kept by him; and from the time the judgment is docketed it becomes a lien upon all the real property of the judg ment debtor not exempt from execution in the county owned by him at the time, or which he may afterward acquire, until the lien ceases."

Practice Act, section 204, in part provided likewise. 2 Judgment Constitutes Lien from Time of Docketing. No judgment lien is created upon real property belonging to a judgment debtor until the judg ment be docketed': Eby v. Foster, 61 Cal. 282, 286.

The purpose of docketing a judgment is only to fix a lien against the lienable property: Los Angeles County Bank v. Raynor, 61 Cal. 145, 147; High v. Bank of Commerce, 95 Cal, 386, 389, 29 Am. St. Rep. 121, 30 Pac. 556.

In entering names in the docket "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 the attention of those interested to the existence of a judgment and to all its incidents." Thus the judgment when s docketed constituted a lien: Hibberd v. Smith, 50 Cal. 511, 517, 518.

all his immovable property, subject to forced sale, in the county wherein it was docketed, whether owned by the judgment debtor at the

3 Immovable Property.-The statutory words are "real property," but "the words 'real property' are coextensive with lands, tenements, and hereditaments and include any interest in land held by the judgment debtor': Martinovich v. Marsicano, 137 Cal. 354, 356, 70 Pac. 459.

4 Constitutes Lien Against Property Subject to Forced Sale.-The statutory language is "not exempt from forced sale. "The lien of a judgment is purely the creature of statute, and in this state the statute only provides that a judgment shall become a lien from the time it is docketed upon the property of the judgment debtor 'not exempt from execution,' which means, upon property which is subject to forced sale': Ackley v. Chamberlain, 16 Cal. 181, 183, 76 Am. Dec. 516.

A homestead, not being subject to forced sale, cannot be affected by a judgment lien: Ackley v. Chamberlain, 16 Cal. 181, 183, 76 Am. Dec. 516; Eby v. Foster, 61 Cal. 282, 287.

"A judgment cannot become a lien upon the homestead premises. It can become a lien only upon the real property of the judgment debtor which is 'not exempt from execution'-that is, which can be subjected to forced sale': Bowman v. Norton, 16 Cal. 213, 220.

And although the homestead premises greatly exceed in value the homestead value, a judgment cannot become a lien against them. The judgment creditor must take the proper means to have the homestead partitioned and the homestead set apart: Sanders v. Russell, 86 Cal. 119, 120-121, 21 Am. St. Rep. 26, 24 Pac. 852; Barrett v. Sims, 59 Cal. 615, 619.

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