Green v. Clark
31 Cal. 591
Cal.
1867
Check Treatment
By the Court, Rhodes, J.:

. Ejectment to recover a lot of land in the Town of Visalia. The Court found certain facts in issue, and ordered judgment *593for the defendant. The plaintiff neither excepted to the finding as defective, nor moved for a new trial, and therefore he cannot attack the finding on the ground either that it does not state all the facts in issue, or that it is contrary to or unsupported by the evidence. The statement on appeal serves no purpose whatever, except to present and explain one exception, which will hereafter be noticed. The evidence therein contained cannot be looked into for the purpose of reviewing the findings, nor can it be considered in determining whether the Court has drawn from all the facts in the case the correct conclusions of law. The decision upon both points are too numerous and uniform to need citation.

Russell and Poindexter, having purchased the lot and executed a mortgage to secure a part of the purchase money, conveyed the lot to Baker and Thompson, with covenants of warranty against the mortgage, and soon thereafter Thompson conveyed to Baker. The mortgage was foreclosed and the property sold to Russell, and he received the Sheriff’s deed therefor, and thereafter conveyed the property to the plaintiff. After the foreclosure sale, but before the execution of the Sheriff’s deed, Bussell by quitclaim deed conveyed the premises to the plaintiff, and the plaintiff also by quitclaim deed conveyed the same to Baker. The defendant claims through Baker.

The plaintiff offered to prove “ that the money used by Russell, the purchaser at the Sheriff’s sale, was the money of plaintiff, and that Russell purchased as the agent of Green the plaintiff,” and the evidence was excluded. Under the operation of section thirty-three of the Act concerning conveyances, all the right, title and interest acquired by Russell by the purchase at the Sheriff’s sale or by means of the Sheriff’s deed, vested in Baker. (Clarke v. Baker, 14 Cal. 612.) The object of the plaintiff in offering the evidence was to intercept the title in transitu, or, more accurately speaking, to show that the title passing by the Sheriff’s sale and conveyance, though *594nominally vesting in Russell, really passed to the plaintiff, because Russell was a mere naked trustee for the plaintiff.

Conceding that Russell acted as the plaintiff’s agent, and used his money in making the purchase at the Sheriff’s sale, it follows that the interest in the premises acquired by the purchase vested in equity in the plaintiff. The character and extent of this interest was very elaborately discussed in Page v. Rogers, ante, 293, and it was held that it comprehended all the estate of the execution defendant in the land, save only the dry, naked legal title, and the right of possession prior to the expiration of the time for redemption. One of the most cogent arguments advanced in support of that position was that such interest was subject to sale, either voluntary or under execution, and it was considered that in this respect it made no difference whether the period for redemption had or had not expired. The plaintiff occupied even a better position than he can claim as growing out of the trust relation between him and Russel], for Russell, five days after his purchase at the Sheriff’’s sale, conveyed the premises, by quitclaim deed, to the plaintiff, who thereby became fully possessed of all the right, title and interest that passed by the Sheriff’s sale. It thus appears that the evidence offered was not material for the purpose of connecting the plaintiff with the interest in the premises passing at the Sheriff’s sale.

Before the expiration of the time for redemption, and before the execution of the Sheriff’s deed to Russell, the plaintiff conveyed the premises by quitclaim deed to Baker. There can be no question as to the effect of that conveyance. It passed to Baker all the right, title and interest that either Russell or the plaintiff acquired by means of the purchase at the Sheriff’s sale. The execution of the two deeds—the deed of Russell to the plaintiff and the deed of the plaintiff to Baker —freed the premises from all the consequences of the Sheriff’s sale, and left them as though the sale had never been made. Those conveyances produced all the effects, so far as the title to the premises is concerned, that would have followed an assignment of the Sheriff’s certificate of purchase by Russell *595to the plaintiff', and by him to Baker. The Sheriff’s deed would have been useless to Baker, for it would have only passed the naked legal title from himself to himself. Russell was not entitled to the Sheriff’s deed, because he had parted with all his interest in the premises to the plaintiff; nor was the plaintiff entitled to have it executed either to himself, or to Russell, for his use, for he had conveyed his interest in the premises to Baker. The execution of the deed by the Sheriff to Russell was as void of effect upon the title as it would have been had Baker redeemed from the sale. Proof that the plaintiff* furnished the purchase money, and that Russell acted as the plaintiff’s agent in effecting the purchase, would not alter the effect of the plaintiff’s deed to Baker.

Judgment affirmed.