The opinion
TRAYNOR, J., Concurring.
A judgment is not less a judgment when it is likened to a contract for certain purposes (Jones v. Union Oil Co., 218 Cal. 775, 778 [ 25 P.2d 5 ] ; London G. & A. Co. v. Industrial Acc. Com., 181 Cal. 460, 465-466 [ 184 P. 864 ]; 1 Freeman, Judgments, § 6, pp. 10-11), or included within the meaning of the term “Contract” in *329 certain statutes (Taylor v. George, 34 Cal.2d 552, 557 [ 212 P.2d 505 ]; Miller v. Murphy, 186 Cal. 344, 347 [ 199 P. 525 ]). Its interpretation, effect, and enforcement are still subject to the rules of law governing judgments. Thus an action on a judgment is governed by the statute of limitations relating to judgments (Code Civ. Proc., § 336 [1]), and not by those relating to contracts (Code Civ. Proc., §§ 337[1], 339[1]; see, also, Bore v. Thornburgh, 90 Cal. 64, 66 [ 27 P. 30 , 25 Am.St.Rep. 100 ]; 1 Freeman, Judgments, §§5-6, pp. 7-13). Sections 681 to 713% of the Code of Civil Procedure governing the enforcement of judgments govern the enforcement of the interlocutory decree in the present ease. They, cannot be supplanted by principles at variance therewith based on an analogy between contracts and judgments.
The decree in the present case ordered that “within two years from the date of this interlocutory decree of divorce [plaintiff] shall pay to [defendant], the sum of Six Hundred Twenty Five and 00/100 Dollars . . . that on the payment by [plaintiff] of said sum of $625, [defendant] will execute a good and sufficient instrument of conveyance to [plaintiff] . . . to all her right, title and interest in and to said . . . land. ’ ’ The decree did not make a presently effective disposition of the community property (cf., Wilson v. Wilson, 76 Cal.App.2d 119, 130 [ 172 P.2d 568 ]), or effect any transfer of the legal title thereto. It merely ordered the parties to perform certain acts upon performance of which plaintiff would become the sole owner of the real property in question. Like a conditional decree for specific performance of a contract for the sale of real property (see Epstein v. Gluckin, 233 N.Y. 490, 494 [ 135 N.E. 861 ]), the interlocutory decree merely created reciprocal rights and obligations in both parties enforceable by either on a tender of the performance due from him under the terms of the decree. The enforcement of the decree as a judgment of a court of competent jurisdiction is governed by the provisions of sections 681 and 685 of the Code of Civil Procedure.
Execution on a judgment will issue as a matter of right for a period of five years from the date of entry. (Di Corpo v. Di Corpo, 33 Cal.2d 195, 201 [ 200 P.2d 529 ]; Wolfe v. Wolfe, 30 Cal.2d 1, 4 [ 180 P.2d 345 ]; Code Civ. Proc., § 681.) The decree in the present ease in effect postponed enforcement thereof by defendant for two years; by not appealing from the decree, she agreed to that postponement. (London G. & *330 A. Co. v. Industrial Acc. Com., supra.) When enforcement of a judgment is postponed for a specified period, the time during which it is postponed “must be excluded from the computation of the five years within which execution may issue.” (Code Civ. Proc., §681.) Defendant was therefore entitled to enforce the judgment at any time within five years after performance by plaintiff became due, or a maximum of seven years after entry of the decree. Enforcement by plaintiff, however, was not postponed; he could compel the execution of a deed by defendant at any time after entry of the decree upon tender of $625. Section 681 therefore limits enforcement by plaintiff as a matter of right to a period of five years after entry of the decree. The majority opinion, however, holds by analogy to contract law that the judgment may be enforced only for two years “plus a reasonable time” thereafter. What is a reasonable time will depend on the circumstances of each case. It may be less than five years after performance becomes due. The rule of the majority opinion is directly in conflict with the statutory provision that the judgment is enforceable as a matter of right for a period of five years from the date of its entry, excluding any time during which enforcement is stayed or postponed by order of the court. The latter rule must govern, since it is the rule controlling the enforcement of judgments.
When more than five years have elapsed from the date of entry of judgment, subject to the exclusion of any time during which execution is postponed, issuance of a writ of execution is not a matter of right, but a matter within the sound discretion of the trial court. The writ may then issue “by leave of the court, upon motion . . . accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion.” (Code Civ. Proc., § 685.) Plaintiff did not seek to enforce the judgment until more than 11 years had elapsed since the date of entry thereof. The trial court found that his failure to seek execution at an earlier date was not justified and denied his motion. The evidence set forth in the majority opinion demonstrates that the denial of the motion was not an abuse of the court’s discretion under section 685. (Di Corpo v. Di Corpo, supra, 200 ; Williams v. Goodin, 17 Cal.App.2d 62, 64-65 [ 61 P.2d 507 ]; Wheeler v. Eldred, 121 Cal. 28, 29, 30 [ 53 P. 431 , 66 Am.St.Rep. 20 ]; *331 Radonich v. Radonich, 130 Cal.App. 250, 254 [ 20 P.2d 51 ].)
The trial court must, on a motion under section 685, issue or deny the writ of execution. It has no power to modify the judgment. (Parker v. Parker, 203 Cal. 787, 795 [ 266 P. 283]; Weldon v. Bogers, 154 Cal. 632, 634-635 [ 98 P. 1070 ].) The interlocutory decree was not appealed and it has long since become final. Trial courts cannot modify or amend their judgments except as prescribed by statute (Bowman v. Bowman, 29 Cal.2d 808, 814 [ 178 P.2d 751 , 170 A.L.R. 246 ]) and there is no statutory authority for the modification of the decree in the present case. (Bowman v. Bowman, supra, Estate of Burnett, 11 Cal.2d 259, 262 [ 79 P.2d 89 ]; Barlow v. City Council of Inglewood, 32 Cal.2d 688, 692-693 [ 197 P.2d 721 ]; Lankton v. Superior Court, 5 Cal.2d 694, 698 [ 55 P.2d 1170 ]; 2 McBaine, California Trial & Appellate Practice, §§ 872-874, pp. 204-214; see, also, Leupe v. Leupe, 21 Cal.2d 145,148 [ 130 P.2d 697 ].)
There is no question of the power of the court in the interlocutory decree to make a presently effective disposition of the community property, as in Leupe v. Leupe, 21 Cal.2d 145 [ 130 P.2d 697 ], in which the trial court presently awarded the husband certain personal property, subject to a lien thereon to secure payments to the wife for her interest therein. In such a ease, the decree of its own force and effect disposes of the community property and transfers the title thereto. (Cf., Wilson v. Wilson, 76 Cal.App.2d 119, 130,133 [ 172 P.2d 568 ].) In the present case, however, the trial court did not purport to make a presently effective disposition of the community property. Title thereto could not be altered or transferred without the performance of additional acts by the parties, viz., the payment of $625 by plaintiff to defendant and the execution of a deed by defendant to plaintiff. The situation with respect to that property therefore is governed by the rules applicable to the disposition of community property when the decree makes no provision therefor. The marriage was not dissolved by the interlocutory decree and no present disposition of the community property was made therein, so that it remained community property until the entry of the final decree. (Pereira v. Pereira, 156 Cal. 1, 10 [ 103 P. 488 , 134 Am.St.Rep. 107 , 23 L.R.A.N.S, 880].) If neither the final nor the interlocutory decree mentions the community property, or if the trial court finds that certain property is community property but makes no present dis *332 position, thereof, the parties upon the entry of the final decree become tenants in common of that property. (Tarim v. Katz, 216 Cal. 554, 559 [ 15 P.2d 493 , 85 A.L.R. 334 ]; Buller v. Buller, 62 Cal.App.2d 694, 698 [ 145 P.2d 653 ]; Fieger v. Fieger, 28 Cal.App.2d 736, 738 [ 83 P.2d 526 ].) In the present case, therefore, plaintiff and defendant at the time of the entry of the final decree became tenants in common of the real property in question, since no present disposition thereof was made. Defendant held title to her undivided half interest subject to her duty under the decree to convey that interest to plaintiff upon his payment of $625 to her. Until that conveyance was made, however, legal title rested in both parties as tenants in common. Its transfer was not effected by a decree directing that certain acts be done that would effect its transfer. Since the. trial court in the exercise of a sound discretion determined that the decree could not be enforced on plaintiff’s motion therefor, the respective interests of the parties in the real property may not be determined with reference to the divorce decree but must be adjudicated in an independent action brought for that purpose. (Tarien v. Katz, supra; Butter v. Butter, supra; Brown v. Brown, 170 Cal. 1, 3 [ 147 P. 1168 ]; Lorraine v. Lorraine, 8 Cal.App.2d 687, 698 [ 48 P.2d 48 ]; Estate of Brix, 181 Cal. 667, 676 [ 186 P. 135 ]; Metropolitan life Ins. Co. v. Welch, 202 Cal. 312, 318 [260 P.545].)
I therefore concur in the judgment of reversal.
Edmonds, J., concurred.