122 Cal. 279 | Cal. | 1898
Claim and delivery of certain five bonds of the Linda Vista Irrigation District of the value of five hundred dollars each. Defendant denies f'he ownership of plaintiff and claims ownership in himself, and sets up the statute of limita
As conclusions of law from the facts and from the admissions of the pleadings the court found the plaintiff to be the owner of the property and entitled to its possession or value thereof, and that the cause of action is not barred, and gave judgment accordingly. The appeal is from the judgment and from the order denying motion for new trial, and comes here on bill of exceptions.
1. Defendant claims title by virtue of a levy of execution on his deficiency judgment and sale thereunder to him of October 20, 1894. The validity of this purchase is drawn in question
We are asked to presume personal service from the recitals found in the judgment alone, although the judgment-roll shows what service was in fact made, and that it was made by publication. The presumption which the law implies in support of judgments of courts of general jurisdiction only arises with respect to jurisdictional facts concerning which the record is silent. (Galpin v. Page, 18 Wall. 350.) Here the record is not silent. The recital in the judgment applied as well to service by publication as to personal service, and the recital must be presumed to refer to such service as the record affirmatively discloses. (Belcher v. Chambers, 53 Cal. 635.) A judgment void upon its face is one that appears to be void by an inspection of the judgment-roll. (People v. Harrison, 84 Cal. 607; Jacks v. Baldez, 97 Cal. 91; Whitney v. Daggett, 108 Cal. 232.) The deficiency judgment was void. (Anderson v. Goff, 72 Cal. 65; 1 Am. St. Rep. 34; Blumberg v. Birch, 99 Cal. 416; 37 Am. St. Rep. 67.)
2. Much attention is given by counsel to the question whether there was a sufficient tender to and demand made upon defendant by plaintiff before the action was brought. Plaintiff alleged a demand and refusal to surrender possession, and that at the time of the demand “plaintiff offered to pay defendant the sum of five hundred and twenty-three dollars and twenty-eight cents, with interest' thereon from September 29, 1894, at seven per cent per annum; that defendant refused to accept said offer and refused to deliver said property to plaintiff, and claimed to be the owner thereof.” This is admitted by failure to deny. De
We think that when a tender is made to a pledgee, and he makes no objection to the amount, but does not surrender the pledge nor accept the tender, the result is to extinguish the lien and amounts to a wrongful conversion, even though the tender in fact is less than the amount that may be due the pledgee. It is his duty to make known his objections, and, failing to do so, the tender must be deemed to have been the full amount due, and his refusal to surrender the property is a wrongful conversion. (Loughborough v. McNevin, 74 Cal. 250; 5 Am. St. Rep. 435; citing Civ. Code, sec. 2910; Jones on Pledges, sec. 543.)
Whether the demand was sufficient need not be decided, for, being admitted by failure to deny and defendant claiming ownership in himself by his answer, no demand was necessary. (Cobbey on Replevin, sec. 447 et seq.; Wells on Replevin, sec. 374; Jones v. Spears, 47 Cal. 20.)
Defendant’s original possession as lienor was lawful and was dependent upon possession (Civ. Code, sec. 2988); but when he surrendered that possession and became a purchaser under a void sale he no longer could be said to be in the lawful possession, nor that he came into possession lawfully. He was thenceforward in the position of any purchaser without right under void sheriff’s sale, and having lost his lien, no tender was necessary; it is therefore immaterial whether the tender was good or not. It was held in Wingard v. Banning, 39 Cal. 543, that if a common carrier sues out and procures to be levied a writ of attachment against property on which he has a lien for freight, he thereby abandons and forfeits his lien. No more do we think a pledgee can surrender the pledge to bo sold on an execution and afterward be allowed to fall back on his original
3. The action was not barred by the statute of limitations. The court found that defendant claimed ownership September 29, 1894, and has ever since, but that plaintiff had no knowledge of such claim. The sheriffs sale of the bonds was October 20, 1894. The tender and demand were made shortly before complaint, was filed. In any case the action was in. time. (Code Civ. Proc., sec. 338, subd. 3.)
We discover no error and therefore recommend that the judgment and order be affirmed.
Haynes, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Temple, J., McFarland, J., Henshaw, J.