JAMES WILSON v. JAMES MADISON et al.

[No 7,657. Department Two.] JAMES WILSON v. JAMES MADISON et al. Homestead—Judgment—Attachment—Justice's Coukt.—A homestead was declared after an attachment on the land and a judgment in a Justice’s Court, but no abstract had been filed or recorded in the Recorder’s Office. Held, that at the time of the declaration of homestead, the judgment did not constitute a lien upon the premises within § 1241 of the Civil Code, and a sale under the judgment conveyed no title. Appeal from a judgment in favor of the defendant, and from an order denying a new trial in the Superior Court of San Diego County. McNealy, J. The case was before the Court on a former appeal, and is reported in 55 Cal. 5. Brunson & Wells, A. B. Hotchkiss, W. J. Gatewood, and Thos. B. Slave, for Appellants. The judgment of the Justice took effect by relation from October 21st, 1876. (Porter v. Pico, 55 Cal. 165; Sharp v. Baird, 43 id. 577.) The title originating in the elder lien, must prevail over that originating in the junior lien. (Littlefield v. Nichols, 42 id. 374.) Chase & Leach, for Respondent. .The judgment was not a lien upon the property at the time of filing the homestead claim, hence no title passed. (McCracken v. Harris, 54 Cal. 81.) [MAJORITY — The Court :] The Court : An attachment from a Justice’s Court was levied upon the premises in question October 21st, 1876; judgment was had in the action November 6th, 1876—but no abstract was filed or recorded in the Recorder’s office; the declaration of homestead was made November 10th, 1876; and thereafter proceedings were had for a sale under the Justice’s execution. At the time of the declaration the judgment did not constitute a lien upon the premises within Section 1241, Civil Code, (McCracken v. Harris, 54 Cal. 81; Sullivan v. Hendrickson, id. 258.) The Court found that Hartfield resided on the premises at the time of the declaration, and there was evidence upon which to base the findings. Judgment and order affirmed.