40 Cal. 74 | Cal. | 1870
delivered tbe opinion of tbe Court; Temple, J., Wallace, J., and Bhodes, C. J., concurring:
Tbe appeal in tbis case is from an order sustaining a demurrer to tbe complaint. There were two grounds of de
The complaint fails tó show that the plaintiff made any inquiry of the Sheriff, or of any one present at the sale, whether or not notice was given to the bidders of Mrs. Austin’s claim; and in the absence of such an averment, there can be no presumption that any such inquiry was made, and the failure to make it, under all the circumstances, would raise a presumption of negligence. But, even though the complaint had shown proper diligence on the part of the plaintiff, there is no averment of any diligence whatever on the part of Mrs. Austin, under whom the plaintiff acquired his title, pending the action; and it is not clear that he would not be bound by her neglect. But,
Judgment affirmed.