41 Cal. 41 | Cal. | 1871
Action to recover possession of Rancho Laguna de la Merced. The title was confirmed to the seven heirs of Francisco de Haro as tenants in common, and the plaintiffs and all the defendants who set up title, claim under them. It is conceded that the interests held by Josefa and Alonzo—one
Prudencio conveyed his interest in the rancho—one seventh—to Mahoney, June 14th, 1860, and the déed was recorded in San Francisco, July 2d, 1862, and in San Mateo, July 3d, 1862. The rancho consists of one body of land, and is situated partly in each of those counties. Prudencio also conveyed the same interest to Pichoir—under whom some of the defendants claim—June 28th, 1862, and the deed was recorded in San Francisco on the same day, and in San Mateo, July 2d, 1862. The Court found that Pichoir, before he paid any part of the purchase money, had notice in fact of the prior conveyance to Mahoney.
Carlotta conveyed her interest—one seventh—to Mahoney, March 3d, 1860, and the deed was recorded in San Mateo, April 16th, 1860, and in San Francisco, July 2d, 1862. She also conveyed the same interest to Spear, June 28th, 1862, and the deed was recorded in San Francisco on the same day, and in San Mateo, July 2d, 1862. Some of the defendants claim under this deed. The Court found that Spear, before he paid the purchase money, had notice in fact of the prior deed to Mahoney, and had also constructive notice by means of the record of a deed in San Mateo County. The-question presented in regard to the conveyances of the interests of Prudencio and Carlotta,- being quite similar, will be considered together.
It is admitted by the defendants’ counsel, that Spear and Pichoir, in making their respective purchases and taking their conveyances, were mere trustees; that the purchases were negotiated and conveyances procured through the agency of Parsons & Thorne, and that Thorne had notice of
Was the judgment recovered by Briones and wife, against
There is as little ground to question the validity of the judgment of Palmer against Rosalia and her husband, Charles Brown, as of the judgment last mentioned. There is nothing in the judgment roll tending to prove that Rosalia was not served with process, and it will be presumed, as the defendants on this point contend, that the process'was duly served on her. There is no legal evidence in the record in this cause to justify the finding that she was not served. The plaintiffs, to show the want of service, rely on the failure of the judgment roll in that case to directly show the service; but that is manifestly insufficient and does not tend to sustain the finding. Were the finding sustained by the evidence, there is still enough in the ease to give the Court jurisdiction of Rosalia, for the appearance of herself and husband in the action, was entered by an attorney of that Court.
The judgment in that case, ordered the Lake House tract to be sold, in satisfaction of the amount found due on the mortgage. The tract was accordingly sold, and was con
There is a further question in respect to the Lake House tract, arising upon this state of fact. While Middleton was the owner of the interest which passed at the foreclosure sale, he conveyed a specific parcel of the land to Daniel Green. Subsequently Le Roy, claiming one undivided seventh of the entire rancho, commenced an action of ejectment against Green and others, to recover the possession of the rancho. It was adjudged in the action, that he was the owner of one seventh of the rancho; and he had judgment for the possession of the same against Green and other defendants. After the recovery of the judgment, Le Roy conveyed all Ms interest in the rancho to Mahoney. The
Borel was not shown to be in possession of any portion of the rancho. It has been held, from an early date, in this State, that ejectment cannot be maintained against a person who is not in possession. (Dutton v. Warschauer, 21 Cal. 609; Hawkins v. Reichart, 28 Cal. 534; Dimick v. Derringer, 32 Cal. 488.) The judgment, therefore, as to him, is erroneous.
The defendants complain of the findings and judgment, because they determine the amount of interest held by the plaintiffs, and they say that this course was both unnecessary and improper. The plaintiffs would be entitled to a recov
The Court recited in the judgment, that the plaintiffs had been, for over three years next prior to the commencement of the action, the owners of the respective interests therein mentioned; but it does not appear how long before the commencement of the action Sharp acquired his interest, and it is shown that three eighths of the interest of Candelaria was conveyed to Mahoney five months before the commencement of the action, and that Le Boy conveyed his interest to Mahoney six months before the commencement of the action.
Judgment as to Borel reversed, and cause remanded for a new trial.
Judgment as against the other appellants reversed and cause remanded for a new trial, unless the respondents shall, within twenty-five days after the filing of this opinion, release to the ajDpellants last mentioned, all claims for damages and rents and profits, and consent that the judgment be modified in accordance with this opinion.
Release was filed and judgment was modified. (See order of Court.)
Mr. Justice Crockett and Mr. Justice Wallace, being disqualified, did not participate in the decision of this case.