the affidavit of proof of service, the complaint | 15. EXECUTORS AND ADMINISTRATORS (§ 315*) with a memorandum indorsed thereon that the -DECREE OF DISTRIBUTION-OPERATION AND default of the defendant in not answering was EFFECT. entered, and a copy of the judgment, it is not necessary that a default judgment should be filed other than by attaching a copy to the judgment roll and filing the judgment roll. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 160, 245; Dec. Dig. § 131.*] 10. PARTNERSHIP (§ 219*) ACTIONS JUDGMENT-CONSTRUCTION. A complaint alleging that "in the case of S. and P., Partners, Doing Business under the Name and Style of S. & P., v. D., judgment was made and entered * * in favor of said S. and P., partners, doing business under the name and style of S. & P.," did not show as claimed that judgment was entered in favor of S. & P. as individuals and not in favor of the partnership. In 1887, while the estate of a husband, who had conveyed land to his wife for life, with reversion to himself and his heirs, was in process of administration, the interest of one of his children as an heir under such deed was sold under execution. Thereafter, and within six months, the superior court made a final decree of distribution, in which, in passing on the execution purchasers' petition for the distribution to them of the share or interest of such son, it adjudged that under such sale they had not "yet acquired" the legal title to such share, and were not entitled to have it distributed to them. Held, that this decree was not an adjudication that the purchaser acquired no title at the judicial sale, as under Newmark's Code Civ. Proc. 1889, § 702, as it then existed, the execu tion debtor had six months within which to redeem the property, and under section 1678, tate to the original heirs, legatees, or devisees, except where such heirs, legatees, or devisees have conveyed their shares to other persons, in which case such shares must be assigned to the person holding them, the probate court had no authority to distribute a share to a purchaser under execution. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 429-440, 442-445; Dec. Dig. requiring the probate court to distribute the es219.*] 11. EXECUTION (§ 345*)-RETURN-OPERATION AND EFFECT. The title of the purchasers of land at an execution sale was not affected as between the parties to the sale by the sheriff's return of sale which showed a sale to a partnership composed of such purchasers. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1044, 1045; Dec. Dig. § 345.*] 12. PARTNERSHIP (§ 68*)-PARTNERSHIP REAL TY-POWER TO HOLD.. A partnership is not a person either natural or artificial, and cannot be a grantee in a deed or hold real estate, and hence, if a sheriff's deed had conveyed lands to a partnership, its legal effect would have been to convey the land to the partners as individuals, who would hold the legal title as tenants in common. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 101-111; Dec. Dig. § 68.*] 13. EXECUTION (§ 33*)-PROPERTY SUBJECT VESTED INTERESTS IN REAL PROPERTY. Under Code Civ. Proc. § 671, providing that a judgment, when docketed, becomes a lien upon all the real property of the judgment debtor not exempt from execution, owned by him at the time or which he may afterwards acquire, and section 688 providing that all goods, chattels, moneys, and other property, both real and personal, or any interest therein of the judgment debtor not exempt by law, are liable to execution, a vested interest in real property in remainder is subject to sale under execution. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 76-82, 86, 87; Dec. Dig. § 33.*] 14. EXECUTION (§ 33*)-PROPERTY SUBJECT VESTED INTERESTS IN REAL PROPERTY. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1298-1314; Dec. Dig. § 315;* Judgment, Cent. Dig. § 1067.] Appeal from Superior Court, Stanislaus County; L. W. Fulkerth, Judge. Action by Martha E. Shirran against Robert Dallas and others, in which John Dallas intervened. From the judgment, intervener appeals. Affirmed. For opinion of Supreme Court denying rehearing, see 132 Pac. 462. C. W. Eastin, of San Francisco, for appellant. Maddux & Maddux, of San Francisco, for respondent Shirran. L. W. Jefferson, of Oakland, for respondents Dallas et al. HART, J. This is an action for the partition of the lands described in the complaint. The court found that the property affected by its decree was so situated that partition thereof could not be had without "great prejudice" to the owners of the same, and accordingly decreed a sale thereof by a referee appointed by the court for that purpose; such sale or sales to be subject to the confirmation of the court, and the proceeds thereof to be paid by said referee into court "to abide the further order of this court." The intervener, John Dallas, appeals from the interlocutory decree so entered and from the order denying his motion for a new trial. Where a husband by an antenuptial deed conveyed land to the wife for her natural life with a reversion at her death to the husband or to his heirs or devisees, the interest of the husband's children during his lifetime was contingent, but, upon his death in the wife's lifeThe facts of the several transactions which time intestate, their interests became vested reare pertinently connected with this litigation mainders, under Civ. Code. § 694, providing that a future interest is vested when there is a are not controverted and are correctly stated person in being who would have a right defeasi- in the brief of the respondent as follows: ble or indefeasible to the immediate possession "On the 9th day of April, 1873, Charles Dalof the property upon the ceasing of the inter-las was the owner of the land in controversy, mediate or precedent interest; it being the uncertainty of the right of enjoyment, and not the uncertainty of actual enjoyment, that renders a remainder contingent, and therefore their interests after the husband's death were subject to sale under execution. [Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 76-82, 86, 87; Dec. Dig. § 33.*] and was a single person, and had the following children by a deceased wife, to wit, John Dallas, Robert Dallas, Mary Hickman, Belle Keep, Sierra Nevada Dallas, Mrs. Jefferson, and William Dallas; these were his only heirs and were all of age. On that tificate of sale, and that the court denied said request. On April 28, 1888, R. B. Purvis, as sheriff of Stanislaus county, pursuant to said sale, conveyed said land to said J. M. Shafe and C. A. Post, which deed was on May 5, 1888, recorded in the recorder's office of the county of Stanislaus; that on May 5, 1888, said C. A. Post conveyed his interest in said land to said J. M. Shafe, which deed was recorded in the recorder's office of Stanislaus county on the 26th day of September, 1903; that on the 5th day of May, 1888, the said J. M. Shafe conveyed the whole of said land to the plaintiff herein, which deed was on the 26th day of September, 1903, recorded in the recorder's office of Stanislaus county." Ellen C. Dallas, widow of Charles Dallas, died on the 11th day of November, 1906. day, in contemplation of marriage with Mrs. | Dallas be distributed to them under the cerEllen Sturge, he executed a deed of this same land, conveying to 'Ellen Sturge for and during her natural life, with the reversion at her death to the said party of the first part, or to his heirs or devisees.' That he married Ellen Sturge on the 9th day of April, 1873. On the 13th day of August, 1883, he died intestate. At the time of his death the same children were living, and were his only heirs as to the land in controversy. He had no children by the second wife. When the estate was distributed December 27, 1887, these same children were all alive. On the 11th day of March, 1887, the said John Dallas was indebted to J. M. Shafe and C. A. Post, partners doing business under the firm name and style of Shafe & Post, on a promissory note dated January 6, 1887, for $2,263.63, with interest thereon at the rate of 1 per cent. per month; both principal and interest aggregating on said day $2,312.66. On the 11th day of March, 1887, said Shafe & Post brought suit against said John Dallas in the superior court of the county of Stanislaus; that summons was duly issued on said day and served March 11, 1887, on the defendant John Dallas, intervener and appellant herein; that the summons was filed in said court March 15, 1887, and the admission of service was written on said summons and signed by the said defendant; that on March 22, 1887, there being no appearance by the defendant, judgment by default was rendered and entered by the clerk against the defendant John Dallas for the sum of $2,320.22, and for $6.10 costs; that this admission of service of summons was signed by the defendant John Dallas; that the clerk on August 24, 1887, issued execution for the sum of $2,395.07, with interest thereon from the date of judgment at 7 per cent., and said execution was duly levied on said land on August 25, 1887; that the sheriff of said county advertised said land for sale on the 24th day of September, 1887, and on that day sold the same to Shafe & Post for $2,451.60; that there was no other Shafe & Post in the county of Stanislaus, except J. M. Shafe and C. A. Post, doing business under the firm name and style of Shafe & Post, and they are and were the plaintiffs in that action; that a certificate of sale was on said day issued by the sheriff to the said Shafe & Post, and the same was recorded on said day in the recorder's office of the county of Stanislaus; that on the 19th day of October, 1887, Ellen C. Dallas, the administratrix of the estate of Charles Dallas, filed in the superior court of the county of San Joaquin a petition for the distribution of the estate of Charles Dallas; that the hearing of the same was fixed for the 17th day of November, 1887; that the decree of distribution was made on the 27th day of December, 1887. On the 29th day of October, 1887, said Shafe & Post filed in the superior court a re It will be observed that the plaintiff's title to the lands in dispute is derived from the sheriff's deed, executed and delivered upon the sale of said lands under the execution issued upon the judgment rendered and entered in the case of Shafe & Post v. John Dallas. The principal objections urged against the plaintiff's title involve a collateral attack upon said judgment, and they arise upon the rulings of the court upon the evidence and the order denying the intervener's motion for a nonsuit at the close of the case for the plaintiff. It is also claimed that there are fatal defects in the sheriff's certificate of sale, and furthermore that, at the time of the purported levy of the execution on the lands in dispute, the intervener had no interest in said lands which was subject to execution or a lien of any character which would or could inure to the benefit of a judgment creditor. The points thus generally referred to, and which are urged in impeachment of said judgment and of plaintiff's title to the land in dispute, may be specifically stated as follows: (1) That there was not a legal service of summons; (2) that the judgment made an illegal allowance in favor of the plaintiffs in said action for costs, the specific ground of objection in that regard being that no cost bill was legally served and filed; (3) that the judgment in said action was never filed; (4) that the default judgment was entered for a sum in excess of that mentioned in the summons and as prayed for by the complaint; (5) that the certificate of sale and return of execution were not legally executed, the claim in this connection being that said certificate and return purport to have been made by the sheriff by an "under sheriff," and that there was, at the time of the transaction, no such an officer as an "under sheriff"; (6) that the execution was not levied; (7) that there is a fatal variance between the allegations of the complaint in the present action and the proof in that the complaint herein alleges that in the former action judgment was ren and C. A. Post, as individuals, whereas the | ing of the court jurisdiction of the person of judgment roll in said action shows that judg- Dallas. ment was rendered and entered in favor of The rule uniformly adopted by the authorShafe & Post, as partners; that the com-ities was stated and applied in the early case plaint in this action alleges that the sale by of Alderson v. Bell, 9 Cal. 315, 321, the facts the sheriff was made to J. M. Shafe and C. of which, so far as the point under considA. Post, as individuals, while the sheriff's re-eration is concerned, were precisely the same turn of sale shows that the sale was to as those in the case at bar. There, as here, "Shafe & Post," as partners, etc.; (8) that the sheriff's deed was not properly or legally recorded; (9) that, at the time of the entry of judgment in the case of Shafe & Post v. John Dallas, the last named had no interest in the land upon which a judgment could become a lien, or upon which an execution could be levied. · the defendants, over what purported to be their signatures, acknowledged service of process by the indorsement thereof in writing upon the complaint. There, as here, the claim was that such admission of service was insufficient to give the court jurisdiction of the persons of the defendants because of the absence of proof of the signatures of the defendants, and a designation of the place where the service was made. While holding that, "when the proof of service of process consists of the written admission of the defendants, such admission, to be available in the action, should be accompanied with some evidence of the genuineness of the signatures of the defendants," the court nevertheless said: "The decree recites that the defendants had been regularly served with process, or had waived service by their acknowledgment. This is sufficient evidence that the requisite proof was produced to establish the ants to their admission. Even if there were no such recitals in the decree, and there was an entire absence of evidence in the record on the point, still the presumption should be in favor of the jurisdiction of the court and of the regularity of its proceedings; and, for the want of such evidence, the decree cannot be impeached in this collateral action" Crane v. Brannan, 3 Cal. 192. See, also, [1] As stated, most, if not all, of these objections involve a collateral attack upon the judgment in the case of Shafe & Post v. John Dallas. The settled rule is that, in a collateral attack upon a judgment, the question whether such judgment is or is not void must be determined by an inspection of the judgment roll, which, in a case where, as here, the complaint has not been answered, consists of the summons, proof of service, the complaint upon which is indorsed a memorandum that the default of the defendant in not answering has been entered, and a copy of the judgment, "and in case the serv-genuineness of the signatures of the defendice so made is by publication, the affidavit for publication of summons, and the order directing the publication of summons." Section 670, subd. 1, Code Civ. Proc. In other words, "every presumption is in favor of the validity of the judgment, and any condition of facts consistent with the validity of the judgment will be presumed to have existed, rather than one which will defeat the judg-citing Cook v. Darling, 18 Pick. (Mass.) 393; ment." Canadian, etc., Co. v. Clarita, etc., Co., 140 Cal. 674, 74 Pac. 302; In re Eichoff, 101 Cal. 605, 36 Pac. 11; Eichoff v. Eichoff, 107 Cal. 42, 40 Pac. 24, 48 Am. St. Rep. 110. In the case of Shafe & Post v. Dallas, the defendant indorsed on the summons in writing the following admission: "I hereby acknowledge and admit that the within summons was duly and legally served on me at the county of Stanislaus, state of California, this 11th day of March, A. D. 1887. [Signed] John Dallas." The Code of Civil Procedure provides that proof of the service of summons and complaint may, among other modes, be by "the written admission of the defendant." It is contended, however, that it cannot be told from an inspection of the judgment roll whether there was proof of the genuineness of the signature of the defendant to the admission of service of summons, nor whether a copy of the complaint was served with the summons. Section 410, Code Civ. Proc. The answer to this proposition is that the judgment itself recites that the defendant John Dallas was "regularly served with process," and that from such recital the presumption follows that there ex [2] In the case of Drake v. Duvenick, 45 Cal. 455, it is held that the failure of the return of summons to show that a copy of the complaint had been served with the summons discloses a mere irregularity which does not render the judgment void or subject to collateral attack. [3, 4] What has already been said applies with equal pertinency and force to the assault upon the judgment in question because of the alleged illegal allowance of costs and the asserted excess in the amount awarded by said judgment over the amount sued for. As to the matter of costs, it is to be added that the cost bill is no part of the judgment roll, and it is to be conclusively presumed, in support of the judgment, that all the requirements of the statute which are necessary to the giving the court authority to allow costs were duly and regularly observed. The same presumption is to be indulged with respect to the matter of the alleged excess in the sum awarded by the complaint, conceding that such a variance | cutions, which are immune from direct atin fact exists. In other words, the court tack by reason of the lapse of time, would having acquired jurisdiction of the subject- obviously be productive of very mischievous matter of the action and of the defendant, consequences; hence the very sensible rule it likewise acquired jurisdiction to render before referred to that where a judgment judgment in the action; and, if thus it does not appear upon the face of the judgawarded to the plaintiffs more than their ment roll to have been coram non judice, or complaint showed that they claimed or were where an erroneous execution thereupon isentitled to, the judgment for that reason is sued is amendable, requires that both such merely erroneous, correctible only on appeal judgment and such execution must, when 1 Freeman on Judgments, § 135, collaterally assailed, be treated as absoluteand authorities cited in the footnotes at ly valid in all respects. page 252. therefrom. The authorities cited by counsel for appellant in support of his position on the questions discussed in the foregoing are not in point. They are cases in which a direct attack was made upon the judgment, and therefore deal with situations entirely different from that presented here. [6, 7] The claim that the return of execution and the sheriff's certificate of sale are void for the asserted reason that they do [5] It is further contended that the execution issued on the judgment was void because it called for more money than was awarded to the plaintiffs by said judgment. Conceding that the suggested disparity be tween the judgment and the execution existed, still the variance amounted to a mere irregularity which did not render the execution absolutely void. The rule is that an execution which may be amended is not not appear upon their face to have been void, and it has been held that an execution executed by the sheriff is untenable. This which calls for too much money is amend-point grows out of the fact that said return able. Hunt v. Loucks, 38 Cal. 372, 99 Am. and certificate purport to have been executDec. 404. Therefore the execution concerned in this case, if erroneous in the particular indicated, could have been amended on motion or through some appropriate proceeding, so that the amount it called for would have conformed to the amount awarded by the judgment; but, no such proceeding having been resorted to at the proper time, the variance, if variance there was, cannot, in this collateral way, be sustained as in impeachment of the title established and conveyed by the sheriff's deed. 1 Freeman on Execution, § 43; Hunt v. Loucks, 38 Cal. 372, 99 Am. Dec. 404; Doehla v. Phillips, 151 Cal. 496, 91 Pac. 330. Nor is the rule as thus proclaimed any the less applicable in a case where, as here, the judgment upon which the execution has been issued was entered upon the default of the defendant. In this case the defendant, as seen, was duly and regularly served with process, expressly admitted such service, and defaulted. He knew the consequences which would follow such default. Merely because he had failed to answer the complaint did not release him from the duty, incumbent upon him, to see that the judgment did not allow a greater amount than the court was authorized to award under the allegations of the complaint or that the execution did not call for a greater sum of money than the judgment called for. If, therefore, either of these things occurred, it was his duty to have known that the error existed and have seen that it was corrected at the proper time. The rule as to collateral attacks upon judgments or executions thereupon issued is founded on the soundest considerations of public policy. The arbitrary ripping up in ed by the sheriff by and through an “under” time of the purported sheriff's sale, there was sheriff; the contention being that, at the no such an officer known to our law as an "under sheriff." It is not deemed necessary, in order to decide the present point, to ascertain whether, at the time of the purchase of the property in dispute at the sheriff's sale by Shafe & Post, there was or was not an officer, connected with the office of sher iff, technically designated by the statute as an "under sheriff," for it is a matter of such common knowledge that the courts may take notice of the fact that in this state, from almost the beginning of the state government, one of the deputies in the office of sheriff of each of the counties has always been known and designated, if not by the law by the sheriff himself, as an "under sheriff," generally meaning the chief deputy. Moreover, the phrase "under sheriff" bears a distinct and definite legal signification. It is defined by Bouvier's Dictionary, vol. 2, p. 611, as "a deputy of a sheriff." In Words and Phrases, etc., vol. 3, p. 2009, we find this: "Deputy sheriffs are of two kinds: (1) A general deputy, or under sheriff, who, by virtue of his appointment, has authority to execute all the ordinary duties of the office of sheriff. * Thus it clearly appears that an "under sheriff" is merely another name for a "deputy sheriff," and that the two phrases describe precisely the same officer. It follows that the execution of the return and the certificate of sale referred to in this case by the sheriff by or through a person designating himself upon those documents as an "under sheriff" was sufficient to show that the official acts essential to their validity were and regularly authorized to act in said trans- constitute the judgment roll: (1) In case the actions for him and in his name. [8] The contention that there was not a legal levy upon the property in dispute cannot be supported. The sheriff's return and certificate of sale clearly disclose that the levy was made according to the requirements of the law; but, even if this were not true, still the point cannot be urged in derogation of the title acquired by the purchaser at the sheriff's sale of the property under the execution. The rule in this state is and has been from a very early date that the validity of the title to property conveyed by a sheriff's deed at an execution sale is not dependant upon the sheriff's return. "That title was not created by the return, but was derived from the previous sale made by the sheriff by virtue of his writ. The sale and the sheriff's deed are sufficient evidence of the title, and, if the purchaser can show that the sheriff had authority to sell, it is enough, and he need look no further." Ritter v. Scannell, 11 Cal. 248, 70 Am. Dec. 775, citing Jackson v. Sternbergh, 1 John. Cas. (N. Y.) 153; Blood v. Light, 38 Cal. 649, 99 Am. Dec. 441; Porter v. Pico, 55 Cal. 172; Hibberd v. Smith, 67 Cal. 564, 4 Pac. 473, 8 Pac. 46, 56 Am. Rep. 726; McFall v. Buckeye, etc., Association, 122 Cal. 471, 55 Pac. 253, 68 Am. St. Rep. 47; Weldon v. Rogers, 157 Cal. 413, 108 Pac. 266; 2 Freeman on Executions, 274. In Blood v. Light, supra, it is said: "The performance of the acts described in the statute as a levying of the execution is material only in reference to the intervening rights of third persons who are not parties to the writ. It is undoubtedly the duty of the officer to proceed strictly according to the statute, and, if he does not do so, the sale may be set aside, upon motion, or he may be made to respond in damages to any one who has been injured by his neglect; but it would be gross injustice to hold that by proof of such neglect, made, perhaps, years after the sale, the purchasers' title shall be defeated." [9] The point that the judgment is void for the alleged reason that it was not "filed" by the clerk is without merit. Section 585, subd. 1, of the Code of Civil Procedure, at the time of the entry of the judgment in controversy, provided, as it now provides, as follows: "In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for the amount demanded in the complaint, including the costs, against the defendant," etc. Section 670 of the same Code provides: "Immediately after entering the judgment, the clerk must attach The complaint is not answered by any defendant, the summons, with the affidavit of proof of service; the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment," etc. It will be observed that, with the exception that a copy of such a judgment must be attached to the other papers mentioned in section 670 and thus become a constituent part of the judgment roll, which must be filed, neither of the sections above referred to requires that a judgment by default must be filed. record before us discloses that in the former action the clerk strictly followed the requirements of subdivision 1 of section 670; that is, that he attached together the summons upon which is indorsed the written admission of service thereof by the defendant, the complaint, the clerk's entry of default, a copy of the judgment by default entered by the clerk, and a certificate of the clerk to the judgment roll, and filed the judgment roll. This was all that the law required. The cases cited by the appellant to this point are not applicable. The Code of Civil Procedure expressly provides that, upon the trial of a question of fact by the court, its decision must be given in writing and filed, etc. (section 632), and that the judgment upon the decision must be entered accordingly (section 633), and it is merely held in the cases referred to by appellant that in such case a decision must be filed as so required before judgment may be entered. But there is not to be found in those cases a single word which furnishes the slightest reason for supposing that it was intended that a judgment by default must be filed otherwise than as prescribed by section 670, as above explained. [10] We have discovered no variance between the allegations of the complaint in the present action and the proofs, nor any between the allegations of the plaintiff's answer to the appellant's complaint in intervention and the evidence. One of the contentions under this assignment is that the complaint alleges that "in the case of J. M. Shafe and C. A. Post v. John Dallas, judgment was made and entered for the sum of $2,366.63 and interest," whereas the judg ment so made and entered was "in favor of the partnership and not in favor of two individuals." But counsel for some reason seems to have overlooked in its entirety the averment to which he refers. The complaint very plainly alleges that the judgment in question was rendered and entered in favor of Shafe and Post, as partners. In that particular it reads: * In the case of J. M. Shafe and C. A. Post, partners doing business under the name and style of Shafe & Post, v. John Dallas, judgment was made and entered for the sum of $2,366.63 and 66 * |