A general demurrer to the complaint was sustained, judgment entered accordingly, and the plaintiff appeals.
The complaint attempts to state a cause of action against the defendant to recover the sum of $1,061.50, paid by the plaintiff to Laekmann as sheijiff, under protest, to redeem certain real estate belonging to plaintiff from a sale thereof on an execution issued on a judgment- in favor of A. C. AVhyte against Hilley Rosencrantz, a former owner of the real estate, from whom, by mesne conveyances, the plaintiff obtained his-title. The contentions of the plaintiff are that the sheriff’s sale.was a cloud on his title and valid on the face of the record, though invalid in fact, and that money paid to remove or prevent a cloud upon the title to land is paid upon compulsion and may be recovered by action.
We think the complaint does not show that the sheriff’s sale was a cloud on the title. In considering this question, we are confined to the facts alleged in the complaint. We cannot consider facts not alleged, although both parties admit that they exist. And with respect to any official conduct of the sheriff in the proceedings, as to which the complaint is silent, we cannot, in aid of the plaintiff’s case, supply facts not alleged, nor assume that the, sheriff officially did otherwise than what the law would require him to do under the circumstances appearing.
Maskey acquired title under a conveyance by Rosencrantz, the judgment debtor, made before the judgment in Whyte
v.
Rosencrantz was rendered, but after an attachment issued in
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the action had been duly levied on the land. The title under the sheriff’s sale, as against the plaintiff, therefore, depended on the continuance of the lien of the attachment and its subsequent merger in the judgment. The action of Whyte
v.
Rosencrantz was begun on February 25, 1895, and the attachment was issued and levied on that day. On June 20, 1895, the sheriff accepted an undertaking for the release of the attachment, given in pursuance of section 540 of the Code of Civil Procedure, and released the attachment, and on June 21, 1895, in consideration of the undertaking, he officially executed a release, which was duly recorded in the office of the recorder. The complaint does not state that at the time this undertaking was accepted and the release executed, the sheriff had previously returned the attachment, nor that the writ was not then in his possession, nor that no summons was issued, nor that he did not receive the writ of attachment with the summons, nor that he did not make due and correct return to the writ. As to these things it is silent. Under section 559 of the Code of Civil Procedure he may have received the writ, with the summons, and in that event he would be required by that section to return it with the summons, an event which could lawfully have been delayed until after the date of the release. This section also requires him to state in his return to the writ his proceedings thereon. It was decided in
Hesser
v.
Rowley,
It follows from this that the record necessary to support the sheriff’s sale would also show its invalidity. In order to show the levy of the writ, whereby the lien had attached to. the real estate before its conveyance to the plaintiff’s predecessor, who purchased before the judgment, it would be necessary for the person claiming under the sheriff’s sale to put in evidence the return to the writ of attachment. We must
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assume that this return recited the fact of the acceptance of the undertaking and the execution of the release of the levy. This would extinguish the lien and render the sale nugatory against a purchaser from the judgment debtor before judgment. In ejectment against Maskey by the purchaser at the sheriff’s sale the action would be defeated upon the evidence of the proceedings upon which the sale was founded, and in such an action Maskey, as defendant, would be entitled to a nonsuit at the close of the evidence for the plaintiff therein. As owner he would not be required to offer any evidence to defeat a recovery. Under these circumstances the record of the sheriff’s sale, or the deed thereunder if it had been executed, would constitute no cloud on the plaintiff’s title. “If such proof would be necessary, the cloud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed.”
(Pixley
v.
Huggins,
It is conceded by the plaintiff that the payment to redeem was voluntary unless the sale would cast a cloud on the title, and that if it was a voluntary payment his action must fail. There can be no doubt that this is a correct principle. Having reached the conclusion that the complaint does not show that there was a cloud upon the plaintiff’s title, it will be unnecessary for us to consider the question whether or not, if the contrary had been shown, the payment would be recoverable as a payment made under compulsion. The demurrer was properly sustained.
The judgment is affirmed.
Van Dyke, J., and Angellotti, J., concurred.
Notes