Long v. Neville

29 Cal. 131 | Cal. | 1865

By the Court, Sanderson, C. J.

This is an action for damages against a Sheriff and his sureties for his neglect and refusal to execute a writ of habere facias possessionem. Judgment of nonsuit was rendered in the Court below. The facts disclosed by the plaintiffs’ evidence are substantially as follows: The plaintiffs commenced an action of ejectment against two persons by the name of Hull, who were in the actual possession of the land at the time the action was brought. The Hulls were in possession as tenants of one Ellis, who attempted to intervene by petition, as provided in the six hundred and sixty-first section of the Practice Act; but the plaintiffs demurred to his petition and the demurrer was sustained by the Court. The Hulls made default, and judgment was regularly entered against them and them only for the possession of the land. Pending the action of ejectment, Ellis brought an action against the Hulls under the thirteenth section of the Act concerning forcible entry and unlawful detainer, in which he obtained judgment and dispossessed the Hulls.

Afterwards Ellis leased the land to one Brown, who was in possession at the time the Sheriff received the writ. No notice of Us pendens was filed in the Recorder’s oifice, nor had Brown actual notice of the pendency of the action. Upon this state of facts the Sheriff refused to execute the writ.

The only question involved in the case is whether the Sheriff, upon the facts stated, could lawfully dispossess Brown under the writ. If he could, he was bound to do so; and, having failed and refused, he and his sureties are liable to the plaintiffs for such damages as they may have sustained by reason of such refusal.

In what cases notice of lis pendens must be filed.

The question involved is wholly unaffected by the twenty-seventh section of the Practice Act relating to notice of lis pendens. By its own terms that section does not apply to actions affecting the possession of real property, but, on the contrary, is confined to actions affecting the title thereto. Actions of ejectment do not affect the title, but the possession. The title remains after judgment precisely where it was before, and is only brought into the case for the purpose of aiding the Court in determining to whom the possession belongs. The judgment transfers the possession to the plaintiff if he shows a better right to it than the defendant, but the plaintiff does not thereby acquire any better or other or different title than he had before; on the contrary, he goes into possession under whatever title he may have previously had. He goes into possession according to his title, and the title and the possession unite. If he has a freehold interest he goes in as a freeholder ; if he has a chattel interest he goes in as a termor, and if he has no title at all he goes in as a trespasser. (Tillinghast’s Adams, 327; Chapman v. Armistead, 4 Mumford, 390.)

The twenty-seventh section only applies to actions which operate directly upon the title and by the result of which some change as to the title is wrought. Examples of which are found in actions for the condemnation of real estate, and the specific performance of contracts relating thereto, for the foreclosure of mortgages, or other liens, and the like.

What persons Sheriff may dispossess under writ of habere facias possessionem.

What parties can be dispossessed under a writ of habere facias possessionem, under any and all circumstances, is not very clear upon authority. Some cases go so far as to hold that all persons who enter into possession after the commencement of the action, regardless of how or by what title they entered, must go out, upon the ground that otherwise there might be no end to litigation ; while other cases seem to go no further than to hold that the defendant and those entering under or succeeding to him in the possession of the laud only need go out, upon the ground that none are affected by the judgment except parties and privies, and that no one can be deprived of his property without first having been allowed his day in Court; and we apprehend that these two principles, which practically amount to the same thing, together furnish the true test for the solution of every case. The first is incorporated in the two hundred and sixty-third section of the Practice Act, which is in these words: “ An action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person, either before or after the commencement of the action.” Prima facie, all who come into possession after action brought must go out, for the presumption is, nothing, to the contrary appearing, that they came in under the defendant; but this prima facie case is rebutted when it appears that some person other than the defendant is in possession under a title adverse to his, for the right to the possession flowing from such a title has not been determined by the judgment. By way of illustration take a case which is put by the Court in Jones v. Chiles, 2 Dana, 321. Two actions of ejectment are pending against the same terre-tenant prosecuted by different plaintiffs upon different titles, both of which are adverse to that of the terretenant; both plaintiffs recover judgment, and the plaintiff whose action was commenced last takes possession under a habere facias. Can the plaintiff whose action was instituted first turn the other out under a habere facias against the terretenant? The Court answers the question thus: “ If each plaintiff asserted a different title against the/ defendant in possession, and if the tenant held adversely to the titles thus asserted, and is not privy to or connected with either of the titles, we think that the plaintiff who obtained possession under his judgment first could not be dispossessed in virtue of a habere facias against the tenant in favor of the plaintiff in the other action. The rights of such claimants ought to be tried in a suit to which they are parties before either should molest the other, gaining possession under a judgment against the terre-tenant.” The reason being that the title of the first plaintiff has not been tried ; or in other words, his right to the possession has not been determined by the judgment under which the second plaintiff claims the possession, and to allow him to prevail would be to turn the first plaintiff out without his day in Court. Now, bearing the reason of the rule in mind, let us change the conditions by supposing that the title of the first plaintiff is not adverse to that of the terra-tenant, as in the case of landlord and tenant, and what is the result ? Obviously the opposite of the former, for the reason given for the former is wanting here. The first plaintiff has not obtained possession under a title adverse to that of the terra-tenant, and which was not tried in the other action, but has succeeded to the possession under the same title which was held by the terratenant, and which was tried in the other action and as against which the second plaintiff has prevailed and recovered possession.

In the present case the terre-tenants, the Hulls, were the tenants of Ellis. Pending the action, Ellis obtained possession by- virtue of his action against the Hulls under the thirteenth section of the Act concerning forcible entries and unlawful detainers, and with notice of the pending action of ejectment. Being in possession he leased to Brown. Thus Brown came in under the same title and held the same right to the possession which was held by the Hulls when the action was commenced against them; or in other words, the same right to the possession which was determined in that action. It follows that the Sheriff could have lawfully dispossessed Brown under the writ in question, and having failed to do so has made himself and his sureties liable to this action.

Judgment reversed and new trial ordered.

Shafter and Rhodes, Justices, dissenting.

We dissent.