29 Cal. 131 | Cal. | 1865
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
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,
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.