Fulton v. Duro

687 P.2d 1367 (1984)

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Nature of the Case

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Facts

Fulton (P) obtained a stipulated judgment against Duro (D). An abstract of that judgment was filed and recorded in the Valley County Recorder's office. P requested a writ of execution, which was issued. The sheriff issued a notice of sheriff's sale. D was purchasing the land under a land sale contract. After the judgment lien was recorded, D assigned the contract to Samuelson. Neither the writ of execution nor the notice of sheriff's levy was recorded prior to the sale. The sheriff's sale was held, and P purchased the property at the sale. After the sale, the sheriff filed a return on the writ of execution, stating that the real property had been sold to D and his wife. Samuelson filed a motion to vacate the sheriff's sale. He alleged that D had assigned his interest in the real property before the sheriff's sale and that the sheriff had not made a valid levy of execution on the property. Samuelson alleged that a vendee's interest in a land sale contract does not constitute the ownership of real property, within the meaning of I.C. § 10-1110; therefore, the recording of P's judgment against D did not give P a lien on the real property before D assigned his interest to Samuelson. The court agreed with Samuelson. P appealed.