whether the judgment debtor had or had not, when he contracted his debt, or obtained his judgment, or docketed the same, notice of such equitable estate, equitable lien or mere equity. If they are prior in time they will always be preferred to a judgment lien: Meier v. Kelly, 22 Or. 140, 29 Pac. 265; Stannis v. Nicholson, 2 Or. 335. A priority of lien can not be gained as in a case of discovery of equitable assets where a legal existing lien must first be displaced: Lillienthal v. Hotaling Co. 15 Or. 371, 15 Pac. 630.

§ 206. Expiration and Renewal of Lien.

EXECUTION.-The clerk of the circuit court has no authority to issue an execution out of that court upon a judgment rendered in the county court: Willamette Real Estate Co. v. Hendrix, 28 Or. 492, 42 Pac. 514, 52 Am. St. Rep. 800.

Nor can the clerk of the court of a county in which a transcript of a judgment of another county has been filed issue an execution upon such judgment; it can only issue from the county in which the judgment was rendered: Lovelady v. Burgess, 32 Or. 420, 52 Pac. 25.

Whenever, after the entry of judgment, a period of ten years shall elapse without an execution being issued on such judgment, the lien thereof shall expire. If afterwards leave is given to issue execution thereon, a transcript of the docket of the order allowing the same may be docketed in any other county in the state, in the same manner as a judgment. From the date of docketing such order or a transcript thereof, the lien of the judgment shall begin anew and continue in all respects as upon the first docketing of the same. [L. 1862, p. 64; L. 1864; D. Cd. § 267; H. C. § 270.]

By 241 a judgment upon which no execution has issued for a period of ten years is conclusively presumed to have been paid.

§ 207. Unrecorded Conveyance, Priority of Lien Over.

A conveyance of real property, or any portion thereof or interest therein, shall be void as against the lien of a judgment unless such conveyance be recorded at the time of docketing such judgment or the transcript thereof, as the case may be, or unless it be recorded within the time after its execution provided by law, as between conveyances for the same real property, [L. 1862; D. Cd. § 268; H. C. § 271.]

See note to § 205, ante. PRIORITY OF LIEN OVER UNRECORDED CONVEYANCES.-The lien must have been obtained in good faith and without notice of the prior conveyance or an equitable estate in another in order that it take precedence: Baker v. Woodward, 12 Or. 3, 6 Pac. 173; Stannis v. Nicholson, 2 Or. 333; United States v. Griswold, 8 Fed. 572; Riddle v. Miller, 19 Or. 469, 23 Pac. 807.

The intention of the legislature in adopting this and §§ 302, 303, post, was to give the lien creditor under an attachment, judgment or execution, the same standing in regard to his right in or to the property affected thereby which he would gain by a purchase of the property from the debtor: Riddle v. Miller, 19 Or. 469, 23 Pac. 807.

This section applies to conveyances which if recorded would give notice, but does not apply to equities which require the aid of a court to establish: Meier v. Kelly, 22 Or. 141, 29 Pac. 265.

§ 208. Judgment Roll, how Prepared.

A party in possession of land under a defective deed, and having an equitable lien thereon for the purchase price paid by him, being otherwise without notice, is not affected by a subsequent suit to subject the land to the payment of a judgment against one who is alleged to have advanced the money for the conveyance to the grantor in the defective deed, but who, by the record is a stranger to the title, especially where the judgment was dormant when the possession began under the defective deed: Davisson v. Mackay, 22 Or. 247, 29 Pac. 791. Where a judgment creditor seeks to establish his lien on lands as superior to a prior mortgage he must both allege and show that the mortgage was unrecorded. and that he acquired his judgment in good faith and without notice or knowledge of the unrecorded instrument at the time he acquired his judgment: Laurent v. Lanning, 32 Or. 17, 51 Pac. 80.

After docketing the judgment, and before the next regular term of the court, the clerk shall prepare and file in his office the judgment roll as provided in this section,

1. If the complaint has not been answered by any defendant, he shall

attach together in the order of their filing, issuing, and entry, the complaint, summons, and proof of service, and a copy of the entry of judgment;

2. In all other cases, he shall attach together in like manner the summons and proof of service, the pleadings, bill of exceptions, all orders relating to change of parties, together with a copy of the entry of judgment, and all other journal entries or orders in any way involving the merits and necessarily affecting the judgment;

3. In all cases, the clerk shall attach upon the outside of the judgment roll a blank sheet of paper, upon which he shall indorse the name of the court, the term at which judgment was given, the names of the parties to the action and the title thereof, for whom judgment was given, and the amount or nature thereof, and the date of its entry and docketing. [L. 1862; D. Cd. § 269; H. C. § 272.]

See note to § 553, post, for transcript on appeal. JUDGMENT ROLL.-The judgment roll is not the exclusive record of the case, but only a collection of papers and entries selected from the record for convenience and economy, and sufficient, in the opinion of the legislature, to show the judgment of the court and its jurisdiction to give it; but the record is a history of all the acts and proceedings in the action from its initiation to final judgment, which includes all the papers filed in the case, and upon which the court acted in any step of the proceedings, and this record is of the same verity as the judgment roll which is made up from it: Neff v. Pennoyer, 3 Saw. 274. The return to a writ of review forms part of the judgment roll and should be included: Johns v. Marion County, 4 Or. 46. The proof of service in the case of service by publication includes the affidavit and order for publication, as well as the affidavit of the printer to the fact of publication: Neff v. Pennoyer, 3 Saw. 274.

A referee's report is not part of the judgment roll: Osborn v. Graves, 11 Or. 529, 6 Pac. 227; Van Bibber v. Fields, 25 Or. 527, 36 Pac. 526; Trummer v. Konrad, 32 Or. 54, 51 Pac. 447; nor are affidavits filed in a law action in support of a motion: Farrell v. Oregon Gold Co. 31 Or. 471, 49 Pac. 876.

But where, as on a motion for an order allowing a warrant to issue to the sheriff for the abatement of a private nuisance, the statute has not prescribed of what the judgment roll shall consist, it shall include all papers, such as affidavits and other documents, properly filed in the court below: Ankeny v. Fairview Milling Co. 10 Or. 395. A mere reference in the findings of a court to a document as "Plaintiff's Exhibit A" does not make it a part of the judgment roll, where it is not embodied in the pleadings or copied into or attached to and properly identified as part of the findings, but is simply attached to the transcript: Tatum v. Massie, 29 Or. 140, 44 Pac. 494.

The absence of a material paper from the transcript or its loss from the judgment roll, will not affect the judgment so as to prevent the judgment creditor from enforcing his judgment by execution, if otherwise the record is correct, and the entries and recitals are in due form: Carland v. Heiberg. 2 Or. 77.

A judgment is not void and subject to collateral attack because the original summons does not appear in the judgment roll, where the proof of publication of summons as well as the findings and recitals in the judgment show that a judgment was in fact issued: Bank of Colfax v. Richardson, 34 Or. 540, 54 Pac. 359, 75 Am. St. Rep. 664.

$209. Final Record Instead of Roll,

Instead of the judgment roll prescribed in section 208, there shall be a final record made of the cause, as provided in this section,

1. When in any action it shall appear that the title to real property, or any interest therein, or any easement, franchise, or right in or to the same, is directly determined or affected by the judgment therein, on motion of either party the court shall order that a final record be made of the cause, and the expense of such record shall be taxed as other disbursements of the action;

2. In all other actions, on motion of either party, the court shall order that a final record be made of the cause, at the cost of the party moving for the same.

When a final record is ordered, it shall be made by the clerk within the time prescribed to prepare a judgment roll, by recording the papers and

journal entries, required in such roll, in the order prescribed therefor. [L. 1862; D. Cd. § 270; H. C. § 273.]

FINAL RECORD.-As to contents of the final record, see § 208, ante.

The final record should show unequivocally what was decided: Dray v. Crich, 3 Or. 300.

The record may be amended during the term at which the judgment was given to make it responsive to the facts: Howell v. State, 1 Or. 241.

CHAPTER XVI.

OF LIENS OF JUDGMENTS OF UNITED STATES COURTS.

§ 210. Judgments of United States Courts, Liens Of.

Any judgment or any decree rendered by a circuit court of the United States, or by a district court of the United States, within the state of Oregon, shall be a lien on property throughout said state, in the same manner and to the same extent and under the same conditions as if such judgment or decree had been rendered by a court of general jurisdiction of said state, upon a compliance with the requirements of this act, and not otherwise. [L. 1891, p. 41, §1.1

See § 25, Rev. Stat. U. S. p. 357 (first supplement to Rev. Stat. U. S. p. 602).

§ 211. Docketing, Lien from Time Of.

Any judgment or decree rendered by either of said courts of the United States may be docketed by the clerk of the court which renders it, in like manner and with the same effect as judgments or decrees rendered by a court of general jurisdiction in this state are docketed. At any time after the entry and docketing of such judgment or decree in the judgment docket of such circuit court, or of such district court, and while an execution might issue upon such judgment or decree, and the same remains unsatisfied in whole or in part, the plaintiff, or in case of his death his representative, may file a certified transcript of the original docket in the office of the county clerk, or other custodian of the records of any county in this state. Upon the filing of such transcript, the clerk, or other custodian of the records, shall docket the same in the judgment docket of his office. From the date of docketing the transcript of such judgment or decree, such judgment or decree shall be a lien upon all the real property of the defendant within the county where the same is docketed, or which he may afterwards acquire therein, during the time an execution may issue thereon. [L. 1891, p. 42, § 2.]

§ 212. Transcript of Docket, Docketed in any County in State.

If afterwards leave is given to issue execution on such judgment or decree, a transcript of the docket of the order allowing the same may be docketed in any county in this state, in the same manner as a judgment or decree as aforesaid. From the date of docketing a transcript the lien of such judgment or decree shall begin anew, and continue in all respects as upon the first docketing of the same. [L. 1891, p. 42, § 3.]

III. OF ADVERSE CLAIMS TO PROPERTY LEVIED UPON
IV. OF LEVY AND SALE UNDER EXECUTION

229

233

§ 213. Enforcement of Judgment by Execution,

The party in whose favor a judgment is given which requires the payment of money, the delivery of real or personal property, or either of them, may at any time after the entry thereof have a writ of execution issued for its enforcement, as provided in this title. [L. 1862; D. Cd. § 271; H. C. $274.]

A judgment by confession on a contingent liability under § 192, ante, may be enforced by execution: Allen v. Norton, 6 Or. 344.

$214. Kinds of Execution.

There shall be three kinds of executions: one against the property of the judgment debtor, another against his person, and the third for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same. [L. 1862; D. Cd. § 272; H. C. § 275.]

$215. Clerk to Issue and What to Contain.

The writ of execution shall be issued by the clerk and directed to the sheriff. It shall contain the name of the court, the names of the parties to the action, and the title thereof; it shall substantially describe the judgment, and if it be for money, shall state the amount actually due thereon, and shall require the sheriff substantially as follows:

1. If it be against the property of the judgment debtor, and the judgment directs particular property to be sold, it shall require the sheriff to sell such particular property and apply the proceeds as directed by the judgment; otherwise, it shall require the sheriff to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient per

sonal property can not be found, then out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter;

2. If it be issued after the death of the judgment debtor, and be against real or personal property, it shall require the sheriff to satisfy the judgment, with interest, out of any property in the hands of the debtor's personal relatives [representatives], heirs, devisees, legatees, tenants of real property, or trustees as such;

3. If it be against the person of the judgment debtor, it shall require the sheriff to arrest such debtor and commit him to the jail of the county until he shall pay the judgment, with interest, or be discharged according to law;

4. If it be for the delivery of the possession of real or personal property, it shall require the sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may, at the same time, require the sheriff to satisfy any costs, charges, damages, or rents and profits recovered by the same judgment, out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered to be specified therein, if a delivery thereof can not be had; and if sufficient personal property can not be found, then out of the real property, as provided in the first subdivision of this section, and in that respect it is to be deemed an execution against property. [L. 1862 ; D. Cd. § 273 ; L. 1878, p. 100, § 2 ; H. C. § 276.]

EXECUTION, GENERALLY.-An execution must follow the judgment: Marks v. Willis, 36 Or. 4, 58 Pac. 526, 78 Am. St. Rep. 752.

The description in a mortgage complaint as a certain defined tract, "except two acres owned by" a person named, "and also except land now occupied by W. R. R. Co., about one half acre, and also except a tract of ten acres situated near the center of said section, and occupied by L." is sufficiently accurate on its face to enable an officer to execute a decree that follows it: German Loan Society v. Kern, 38 Or. 232, 62 Pac. 788.

Where an execution is radically defective in failing to follow the judgment, and a sale has been had of certain real property from which is realized about two fifths of what the same property brought a few months previously at another execution sale in the same case, and the cause of the discrepancy in the amount realized does not appear, the court will quash the writ: Flint v. Phipps, 20 Or. 340, 25 Pac. 725, 23 Am. St. Rep. 124.

The power to amend an execution is vested in the court, but its exercise must always be in furtherance of justice: Flint v. Phipps, supra.

If a sale is made under an execution which varies from the judgment in certain particulars, either in the amount of the judgment or in the names of the parties, such variances are treated as irregularities which are amendable, and in a collateral proceeding such amendments will be_considered as actually made: Jones v. Dove, 7 Or. 467.

A sale made under an execution issued without a judgment to support it is void: Hexter v. Poppleton, 9 Or. 481.

When an appeal has been taken from a judgment and undertaking given for a stay of proceedings an execution issued thereon may be recalled and set aside by the circuit court on motion: Bentley v. Jones, 8 Or. 47.

The mere levy on personal property, the property being subsequently returned, is not a satisfaction of the judgment, and furnishes no valid objection to an issue of another execution on the same judgment: Wright v. Young, 6 Or. 87.

Under subd. 2 of this section, and § 220, post, a judgment creditor whose judgment was recovered against the debtor during the latter's lifetime, is entitled to have an execution issued on the judgment against the property of the debtor or for the delivery of real or personal property notwithstanding the death of such debtor: Bower v. Holladay, 18 Or. 491, 22 Pac. 553.

The provision of § 220, that execution shall not issue within six months from the granting of letters is a qualification of the general statutory right to have an execution, and marks the limit as it respects the time within which it may issue in case of the death of the judgment debtor: Watson v. Moore, 40 Or. -, 66 Pac. 815.

Under subd. 4 the property must be so described in the writ that it may be identified: Guille v. Wong Fook, 13 Or. 586, 11 Pac. 277.

After receiving an execution in an action where property has been attached and delivered to a claimant upon executing the usual undertaking, the limit of the sheriff's duty is to make a demand for the property bonded and if the same is not delivered to him to make a return of all of his proceedings to the court: Kohn v. Hinshaw, 17 Or. 308, 20 Pac. 629.