Ingraham v. Forman

• Decision Date: 11 January 1937
• Docket Number: Civil 3800
• Citation: 49 Ariz. 29,63 P.2d 998
• Parties: FRED L. INGRAHAM and INEZ L. INGRAHAM, Husband and Wife, Appellants, v. MARCEL FORMAN, SAM DE CORSE and GEORGE HAGELY, Constituting the Board of Supervisors of the County of Yuma, in the State of Arizona, Appellees
• Court: Arizona Supreme Court

63 P.2d 998

49 Ariz. 29

FRED L. INGRAHAM and INEZ L. INGRAHAM, Husband and Wife, Appellants, v. MARCEL FORMAN, SAM DE CORSE and GEORGE HAGELY, Constituting the Board of Supervisors of the County of Yuma, in the State of Arizona, Appellees

Civil No. 3800

Supreme Court of Arizona

January 11, 1937

APPEAL from a judgment of the Superior Court of the County of Yuma. Richard Lamson, Judge. Judgment affirmed.

Mr Fred L. Ingraham and Mr. Mercer Hemperley, for Appellants.

Mr Glenn Copple, County Attorney, and Mr. A. J. Eddy, Deputy County Attorney, for Appellees.

OPINION

ROSS, J.

Fred L Ingraham and Inez L. Ingraham, his wife, were assessed with three separate pieces of real property located in Yuma county by the officers of such county, and, the taxes thereon becoming delinquent, the state, in due course, brought an action to foreclose its tax lien. Judgment was entered in favor of the state for taxes, costs, and penalties on June 19, 1928, and the property ordered sold under execution and the proceeds applied to the satisfaction of the judgment. Thereafter, on May 26, 1933, execution was issued, returnable in sixty days, and placed in the hands of the sheriff of Yuma county. This officer, after notice, on June 24, 1933, sold all of the property to the state of Arizona in satisfaction of the judgment, penalties, and costs. The Ingrahams failing to redeem, sheriff's deed was executed and delivered to the state.

Sections 3133 and 3134 of the Revised Code of 1928 make it the duty of the boards of supervisors to advertise and sell lands acquired by the state in their respective counties through tax foreclosures and sales. The Board of Supervisors of Yuma County, in pursuance of such statute, was advertising the Ingraham property for sale on June 15, 1935. On June 12, 1935, the Ingrahams commenced this action against the members of said board for injunctive relief, contending that at the time the sale of the premises was made the judgment for taxes was dormant and that, therefore, the sale was void. Defendants filed a general demurrer to the complaint, which was sustained, and, the plaintiffs not asking for leave to amend, judgment was rendered dismissing their complaint. Plaintiffs have appealed from such judgment.

It is the contention of the plaintiffs that the law not only requires that the execution issue within five years after entry of the judgment, but that the sale of property thereunder be also within the five years. This contention is based on the provisions of section 4210, Id., reading: "The party in whose favor a judgment is given may, at any time within five years after entry thereof, have a writ of execution issued for its enforcement. No execution shall be issued upon a judgment after the expiration of five years from the date of its entry, unless such judgment be revived by affidavit, or an action be brought thereon, within five years from the date of such rendition and entry." If this statute applies, plaintiffs' contention is, according to a majority of the cases, right because, although it appears that the execution was issued before the expiration of five years and before the judgment became dormant, the property was not sold until after the five years had run (six days) and at a time when the judgment was dormant.

It is also contended that the statutory five-year judgment lien given a judgment creditor from the date of the rendition and entry of the judgment (section 2017, Id.) "upon all the real property of the judgment debtor" does not extend the life of the judgment lien or the time within which the sale of property under execution must be made. Where the lien is not on any specific property but is on all the real property of the judgment debtor, it seems that a majority of the courts agree that the lien dies with the judgment and that a sale, if made after the period of limitation has run against the judgment lien, although the execution was issued prior thereto, is void. Freeman on Judgments, fifth edition, volume 2, section 1015, makes this statement:

"In many instances, executions have been taken out and levies made within the time prescribed for the continuance of the lien, but so late that the sale did not take place until after the lapse of such time. In regard to such cases, so far as our observation has extended, it has, except in the state of Missouri, been uniformly held that the execution and levy did not continue the lien; and that to preserve the priority acquired by the judgment, the sale must be made during the statutory period. The...