Logan v. Hale

42 Cal. 645 | Cal. | 1872

By the Court, Crockett, J.:

Waiving the question whether the levy of the defendants’ attachment and execution, and the threatened sale under the execution, created a cloud upon the plaintiff’s title, and whether the plaintiff had such a possession of the land sold to Robinson as would enable Mm to maintain an action to quiet bis title under section two hundred and fifty-four of the code, I proceed to inquire whether the defendants are entitled to the relief awarded to them by the Court below. Allowing to the pretensions of the defendants Levensohn and Galland the widest latitude, the utmost that they can rightfully claim on the facts disclosed by the record is that, by reason of their judgment, attachment, and execution, they have acquired a lien, for the security of their debt, upon whatever interest Robinson had in the land purchased from the plaintiff. But I am unable to discover on what possible theory of the facts contained in the record the Court arrived at the conclusion that the execution creditors were entitled to a conveyance of the land from the plaintiff. The levy of their execution did not entitle them to be subrogated to all of Robinson’s rights, but only to a lien on his interest in the land, to be enforced by a sale under the execution. Robinson was not a party to the action, and is not bound by the judgment. If the plaintiff should submit to the judgment, and convey the land, as he is ordered to do, to the execution creditors, the judgment would be no bar to a subsequent action by Robinson, against the plaintiff, to compel a conveyance. Moreover, the land may be worth four times the amount of the judgment, and it may be that, under the parol agreement for a rescission of the contract between Robinson and the plaintiff the latter would be entitled to the surplus proceeds of the sale, even though it be conceded that Robinson had an interest in the land which is subject to the execution. In any view of the case, that portion of the judgment is erroneous which directs the plaintiff to convey the land to the judgment creditors.

The Court also erred in refusing to amend its findings on the request of the plaintiff. The findings, as filed, omitted to find upon several offthe material issues in the cause, and the Court should have supplied the omission when its attention was called to the subject by the plaintiff’s exceptions to the findings.

It was admitted at the trial that the plaintiff was the owner, in possession, of the whole of a tract containing over twenty-five hundred acres, except a small parcel in one corner thereof, containing about one hundred and twenty-five acres, which it was claimed he had sold to Robinson by a verbal contract. It was not pretended that Robinson had any interest, whatever, except in the small parcel above referred to, and yet the Sheriff levied upon and advertised for sale "Robinson’s interest in the whole tract. When the judgment debtor has, or claims, an interest in only a small, well defined parcel of a much larger tract, it is extremely irregular, to say the least, to levy the execution upon his interest in the general tract, instead of the particular parcel which he claims. I am strongly inclined to think, but do not express a positive opinion on the point, that upon an irregular levy of this character, and a threatened’ sale under it, the plaintiff, in possession of the larger tract, would be entitled to enjoin the sale, except of the smaller parcel claimed by the judgment debtor.

Judgment reversed and cause remanded for a new trial.