Diego, and directing a sale of the property, and the application of the proceeds to the payment of the amounts adjudged to be due. On October 8, 1889, a writ for the enforcement of this judgment was issued, and placed in the hands of the sheriff of the county. By the writ the sheriff was commanded to proceed to advertise for sale and sell the property, and to make and file his report of the sale with the clerk of the court within 60 days after his receipt thereof. In obedience to this command the sheriff published and posted notice that he would sell the property on a day named, and within the time limited for the return of the writ, but no sale was ever made pursuant to that notice; "action thereon having been indefinitely postponed pursuant to an agreement by the parties, plaintiff and defendant, that there should be no sale prior to February 24, 1890." The sheriff retained the writ, and subsequently again published and posted notice that he would sell the property thereunder on February 24, 1890; and on that day he sold the whole block to the plaintiff for the sum of $451.40. The block sold consisted of 54 lots, as shown by an official plat on file in the office of the county recorder, and at the time of the sale was of the value of $5,000. On February 21, 1891, the defendant moved the court to vacate and set aside the sale made by the sheriff, as aforesaid, upon two grounds: (1) Because the property consisted of 54 lots, and was sold as a whole. (2) Because the property was advertised for sale and sold after the return day of the writ. The court overruled the motion on the first ground, and sustained it on the second ground, and thereupon made and entered its order vacating the sale. From this order the plaintiff appeals

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The Code of Civil Procedure, in the chapter headed "The Execution," provides: "Sec. 681. The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement. Sec. 682. The writ of execution must be issued in the name of the people, etc. "Sec. 683. The execution may be made returnable at any time not less than ten nor more than sixty days after its receipt by the sheriff," etc. "Sec. 684. * * When the judgment requires the sale of property, the same may be enforced by a writ reciting such judgment, or the material parts thereof, and directing the proper officer to execute the judgment by making the sale, and applying the proceeds in conformity therewith." The only process provided in this state for the enforcement of a judgment foreclosing a lien upon specific property is that prescribed by the section of the Code last quoted. The writ here in question was issued in the name of the people, and pursuant to the provisions of that section. It is, however, claimed by appellant that a writ so issued is not an execution, within the meaning of section 683, and hence that there is no limitation of time within which it must be made returnable. A writ of execution is defined to be “process authorizing the seizure and appropriation of the property of a defendant for the satisfac

tion of the judgment against him." And. Law Dict. When issued upon a judgment running generally against the property of the defendant, it is an authority to the sheriff to seize of the property of the defendant a sufficient amount to satisfy the judgment. As the judgment itself does not specify the property which is to be taken, none of the property of the defendant is affected thereby, or charged with the lien of the judgment, until it is taken by the sheriff under the writ. "Until a levy, property is not affected by the execution. Code Civil Proc. § 688. As the sheriff cannot justify an interference with the possession by the defendant of any of his property, except upon the production of a writ therefor, it is incumbent upon him to show that a seizure of the particular property is within the scope of his writ, and if, by the terms of the writ, such seizure is authorized only within a limited period of time, a seizure after that time has expired is unauthorized, and the sheriff is liable for a trespass. If, however, the sheriff has taken the property within the lifetime of the writ, it has then become lawfully subject to be applied in satisfaction of the judgment, and a sale thereof may be made at any time thereafter. Ror. Jud. Sales, § 872. " Wherever some statute does not provide otherwise, an officer who has entered upon the execution of the writ before the return day thereof by a seizure of or levy upon property may, after the return day, and after the actual return, continue to hold the property, and may prosecute such further proceedings as may be necessary to convert such property, whether it be real or personal, into money for the purpose of satisfying the judgment. Freem. Ex'ns, § 106. The levy may be made at any time during the last day of the writ, and the property will be thereafter legally held by the sheriff against any claim or complaint of the judgment debtor. A writ of venditioni exponas is sometimes issued, but its issuance is not necessary to justify a sale, as the writ itself is only a direction to perform a duty which already exists, and the sheriff acquires no additional authority from its issuance. "By the levy a lien is created whose duration is not limited to the return day of the writ, and from this it must necessarily follow that the officer has authority, notwithstanding the passage of such return day, to make his levy productive by a sale of the realty levied upon; and this authority is not dependent on the issuing of a venditioni exponas, for this writ does nothing more than to compel performance of a pre-existing duty." Freem. Ex'ns, § 58. This rests upon the principle that the levy is the essential act by which the property is set apart for the satisfaction of the judgment, and taken into the custody of the law, and that, after it has been taken from the defendant, his interest is limited to its application to the judgment, irrespective of the time when it may be sold. A decree or a decretal order for the sale of certain specific property, made by a court of equity, differs materially from a common-law judgment. Instead of running against the entire property of the judgment debtor, it

decree foreclosing a mortgage, no levy need be made on the mortgaged premises." Freem. Ex'ns, § 280. The officer, in making the sale, is only executing the directions of the court, and his act is attended with the same result as his sale after a levy under a common-law execution. In both cases the property has been specifically impressed with the burden of satisfying the judgment, and the judg ment debtor is not affected by the time within which this sale shall be made. The same reasons which uphold the validity of a sale by the sheriff after the return day of the writ, where the levy was made in its lifetime, uphold a sale in cases where no levy is required. Having the right to subject the property to a sale for the sat

In 1874, by an amendment to section 684, Code Civil Proc., authority was for the first time given for the issuance of anything in the nature of a process for the purpose of enforcing a judgment directing a sale of real property. In the amendment thus made there is preserved the distinction between the mode of executing a common-law judgment and a decree in equity. The process by which the decree is to be enforced is not termed a "writ of -execution," as is that which is to enforce the ordinary money judgment, but the section provides: "When the judgment requires the sale of property, the same may be enforced by a writ' reciting such judgment, or the material parts thereof, and directing the proper officer to execute the judgment by making the sale and applying the proceeds in conformity therewith." This writ is neither styled an execution, nor is it such in its nature, and the provision of section 683, Code Civil Proc., requiring the execution to be made returnable within 60 days, is inapplicable. Even though the process thus authorized should, under the provisions of section 681, Code Civil Proc., be termed a writ of execution, it does not follow that the same incidents attend it as attend the process issued to enforce a common-law judg. ment. The character of the writ is to be determined by the functions to be performed under its authority, rather than by its name. In order to enforce the writ of execution which is issued upon a common-law judgment, it is necessary for the officer, before he can sell the property of the defendant, to indicate by some act of his the particular property which he intends to appropriate for that purpose. This act is called a "levy," and, as we have seen, must be made in the lifetime of the writ. When, however, the judgment itself designates the property which is to be sold, there is no occasion for a levy. "The only object of a levy is to create a lien upon the land, or, in other words, to subject the lands to the payment of the plaintiff's debt. If this has already been done, a levy is supererogatory. If the sale has been ordered by a court of chancery in a suit in which all the parties in interest were before the court, there is no need of any levy, for the right to sell the land has attached as a consequence of the proceedings in the suit. Hence, under a

which it may be done is but directory, and under the control of the court. The court has at all times such control of its process as to prevent it from becoming a source cf injury, but, in the absence of some showing that injury has resulted from a delay in making the sale, it should not be set aside merely because it was not made before the return day of the writ. As the ground upon which the respondent herein asked to have the sale set aside was that it was made after the return day of the writ, and as this was the only ground upon which the court made the order, it should be reversed. It is so ordered.

We concur: DE HAVEN, J.; PATERSON, J.; GAROUTTE, J.

(94 Cal. 229) WILLAMETTE STEAM MILLS Co. et al. v. LOS ANGELES COLLEGE Co. et al. (No. 13,639.)

(Supreme Court of California. March 31, 1892.) MECHANICS' LIENS-CONTRACT VOID FOR WANT OF RECORD-PRACTICE-FILING CLAIM.

1. Under Code Civil Proc. § 1195, authorizing any number of persons claiming liens on the same property to join them in one action, after such consolidation they should be treated as a single action, and the decision be embodied in a single set of findings and judgment, rather than a separate finding and judgment on each claim. 2. Code Civil Proc. § 1183, provides, inter alia, that where the amount to be paid for any building exceeds $1,000 the contract shall be in writing, signed by the parties, and “shall, before the work is commenced, be filed in the office of the county recorder." Held, that where a contract provided for the erection of a building "conformable to drawings and specifications * * hereto annexed," but the drawings and specifications were not filed with the contract, the contract was void, and cannot serve as a basis in determining the rights of those claiming mechan. ics' liens on the building.

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3. The contract is void, also, where it provides that "the last payment shall be made 35 days after completion of the work, without specifying the amount of such payment, since Code Civil Proc. § 1184, requires that "at least twenty-five per cent. of the whole contract price shall be made payable at least 35 days after the completion of the contract."

4. Code Civil Proc. § 1187, as amended in 1887, (St. & Amend. 1887, p. 154,) provides that every person save the original contractor, claiming a lien, must within 30 days after the completion of the building tile his claim with the county recorder. Held that, where the contract between the owner and contractor was void because not properly filed, mechanics' liens filed be

fore the actual completion of the building were premature, and cannot be enforced.

In bank. Appeal from superior court, Los Angeles county; WILLIAM P. WADE, Judge.

Action by the Willamette Steam Mills Company and others against the Los Angeles College Company and others. From a judgment for plaintiffs, and an order denying a new trial, defendants appeal. Modified.

Graves, O'Melveny & Shankland and R. H. F. Variel, for appellants. Johnson & Borden, Conrey & Swanwick, J. W. Mitchell, R. Dunnigan, Reymert, Orfila & Reymert, and C. McFarland, for respondents.

HARRISON, J. Action for the foreclosure of several mechanics' liens. The Los Angeles College Company entered into an agreement with W. E. Lane, bearing date Sep. tember 8, 1887, for the erection of a college building for the sum of $23,000; but the agreement was not executed until October 6th, on which latter day it was filed in the office of the county recorder for Los Angeles county. The document then filed made reference to certain drawings and specifications as "hereunto annexed," but they were not filed in the recorder's office. Lane entered upon the performance of the contract, but abandoned it March 6, 1888; and thereupon the college company took possession of the premises, occupied and used the same continuously thereafter, and caused the building to be completed on the 21st of April. At various dates, the earliest being March 19th and the latest May 8th, claims for mechanics' liens were filed by the respective respondents herein, and afterwards eight separate actions were commenced for their enforcement. When the causes came on for trial the court made an order that they be consolidated, and their trial was had under such order; but the court made separate findings for each cause, and rendered a separate judgment for each plaintiff for the sale of the premises to satisfy the amount of his claim. The actions are brought here upon an appeal by the college company from the several judgments, and an order denying a new trial, and are presented in a single record, embracing the several judgments, and a single statement of the case, prepared and settled for all the actions.

1. The practice adopted by the court below in making separate findings and judgments is not only inconsistent with its order consolidating the actions, but is itself attended with great inconvenience, and the possibility of serious complication. The provision of section 1195, Code Civil Proc., authorizing such consolidation, is placed in the same category with that permitting the several claimants to join as plaintiffs in one action; and after the order of consolidation had been made the court should thereafter have treated the actions as a single action by the respective plaintiffs against the defend. ants, and embodied its decision in a single set of findings, upon which a single judg ment should have been entered. By this course the court would have very greatly abridged the record, and facilitated its

examination here, and would also have avoided certain inconsistencies in the findings of fact which it has made upon the same evidence. In five of the cases the court has found that the building was occupied by the owner on the 7th of March, but in one it finds such occupancy to have been on the 6th of March, and in two it makes no finding whatever upon the subject. Inasmuch, however, as, under the view we take of the case, the time when such occupancy began is immaterial, these inconsistent findings do not constitute a reversible error. A more serious objection, however, is presented by the fact that separate judgments were entered in favor of the respective claimants at different dates ranging from March 21st to May 1st. If upon these judgments sales of the property should be made at different times, there might be different purchasers, and the respective titles acquired by such purchasers would necessitate further litigation, for the purpose of determining which was the superior. As the court had tried the causes as a single action, it should have incorporated into its findings all the facts that were in issue, directing, if necessary in any particular case, an amendment of the pleadings, for the purpose of having them conform to the proofs, and thereafter should have rendered a single judgment, directing a sale of the property, and the application of its proceeds to the satisfaction of the amounts to which it found that the claimants were respectively entitled.

2. The contract between Lane and the college company is in the form of an ordinary building contract, and provides that the contractor will do the work contracted for “conformably to the drawings and specifications made by R. B. Young, architect, and signed by the parties, and hereto annexed." The insertion of this clause in the contract made the drawings and specifications an essential part thereof, as material as was the price of the work or the terms of payment, and until they were annexed" to the contract, so that its entire terms could be ascertained by mere inspection and without oral testimony, the contract was only inchoate and not complete, and could not form the basis of a recovery. Worden v. Hammond, 37 Cal. 63. Being by virtue of its terms a part of the contract itself, it was necessary for the parties thereto, or one of them, if it was desired that the contract should be the basis of his liability or the measure of his right of recovery, to cause the same to be filed in the recorder's office; and a failure to do so destroyed the validity of the contract. Holland v. Wilson, 76 Cal. 434, 18 Pac. Rep. 412. It is quite as important for the owner as for the contractor to see that the contract is so filed, since without it his liability has no contractual limit. It does not appear from the record whether the drawings and specifications were in fact annexed to the original contract, but it is stipulated that they were not filed in the recorder's office, and consequently the contract itself was not filed. In 1887 the legislature amended section 1183, Code Civil Proc., by providing that instead of filing the entire con