| Cal. | Jul 1, 1863
On the eleventh day of April, 1860, Fogarty brought an action to recover the possession of a certain lot in the City of San Francisco, against Z. W. Sparks, Wolf Light, and others, notice of the pendency of which was filed under the statute, June 2d, 1860, and judgment was rendered therein in favor of the plaintiff against the defendants, August 28th, 1860. On the second of October, 1860, execution was issued on the judgment and placed in the hands of Doane, as Sheriff, for service, who, in pursuance of the writ, dispossessed Wolf Light, one of the defendants, and placed the plaintiff in possession of part of the premises, but finding one' Kennelly in
The affidavit for the writ sets forth, in addition to the above facts, that Kennelly pretends to hold under a lease from E. B. Mastick, an attorney for 'Hervey Sparks, brother of Z. W. Sparks, and claims to have been in possession about two weeks before the date of the affidavit, October 5th, 1860; that Hervey Sparks pretends to have derived possession from Z. W. Sparks; that there was no house on the part of the premises in possession of Kennelly until after the judgment, and no person living thereon; that a house has been built thereon since the judgment, and Kennelly has taken possession of it; that it was built by the direction of Z. W. Sparks, and that Z. W. Sparks, in his answer filed in the action, admitted himself to be in possession of the premises.
Doane, in his affidavit, denies the material portion of the allegations in the plaintiff’s affidavit, upon information and belief, and avers, in like form, that Kennelly entered into possession as tenant under Hervey Sparks; that Hervey Sparks was the owner in fee simple on the twelfth of March, 1860, and ever since has been such owner and in possession of the premises ; that he was not made, a defendant in the suit, and his possession, or right of possession, was not determined by it. Ho proof appears to have been offered by either party on the motion for a mandamus.
The material fact in this case is, who was in possession of the premises at the commencement of the action, or at the time of the filing of the Us pendens. In an action for the possession of real estate, it is of the first importance, that all the parties in possession at the commencement of the suit should be made defendants, otherwise they, or those holding under them, cannot be affected by the judgment rendered in it, or the execution issued to enforce the judgment. For it is a well established principle, that no man can
If Z. W. Sparks, or any other defendant against whom judgment was rendered, was thus in possession, then, if Hervey Sparks or Kennelly took possession after the filing of the lis pendens, or with actual notice of the pendency of the action, they would be bound by the judgment, and could be dispossessed by the execution, the same as though they were parties to the judgment. If a person not a party in the action, having a title or right of possession, should be thus ejected, his rights would not be determined, but he could litigate them in another suit.
The record in this case is not very clear upon this important fact, whether or not Hervey Sparks was in possession at the commencement of the action. The affidavit on which the motion was founded, does not state directly who was in possession, either at the commencement of the action or the filing of the lis pendens. It merely avers that “Z. W. Sparks, by his answer filed in said cause, admitted himself to be in possession of said premises.” TMs is clearly insufficient. Such an admission could only affect Z. W. Sparks, and Hervey Sparks, or any one claiming under him, would not be estopped thereby, nor would it be evidence against them. TMs fact of possession should have been directly and positively alleged in the affidavit.
So, too, the affidavit of Doane alleges m general terms, and upon information and belief only, that Hervey Sparks was the owner in fee simple and in possession before and ever since the commencement of the sMt. TMs, as evidence, is but mere hearsay, and could not be considered as proof of possession or ownership. Hervey Sparks and Kennelly not bemg parties to the record, their rights, whatever they may be, could not be affected by the judgment, unless acquired since the filing of the lis pendens, or with actual notice, wMch is not shown in the present case. If such is the case, it should be distinctly averred in the affidavit on wMch the motion is founded; and if disputed, the question should be determmed by the Court below. If it be true that Hervey Sparks was in possession at the commencement of the action, or before the filing of the Us pendens, without notice, and that he placed
Respondent refers to the case of Fremont v. Crippen (10 Cal. 211" court="Cal." date_filed="1858-07-01" href="https://app.midpage.ai/document/fremont-v-crippen-5433736?utm_source=webapp" opinion_id="5433736">10 Cal. 211) as sustaining his position. That was a judgment in an action of forcible entry, andI after the judgment one of the defendants put a third party in possession, and the Court properly held that he could be dispossessed by the execution. The Court say: “ The object of the statutes concerning forcible entries is to afford parties whose possession is disturbed by force or violence, a summary remedy. This object would be entirely defeated, if a defendant, after judgment, could, by transferring the possession to a stranger, prevent the execution of the writ.” It will be seen that it does not apply to the present case.
The plaintiff may have a case entitling him to the writ, and if so, he can have an opportunity of presenting it in the Court below.
The order granting the writ of mandamus is reversed, and the cause‘is remanded for further proceedings.