38 Cal. 234 | Cal. | 1869
The defendant, being the owner of an undivided interest (stipulated to have been between one fourth and one third) of the rancho of San José de los Moquelumnes, situate partly in the County of Sacramento and partly in the County of San Joaquin, in this State, executed three several mortgages thereon to John F. McCauley, to secure the payment of money due from him to McCauley. The first mortgage was executed November 30, 1861, as security for the payment of the sum of $13,688 37. The second mortgage was executed November 29, 1862, to secure the payment of $10,000, in gold coin, with interest at the rate of one and one half per cent, per month; and the third was executed January 19, 1864, to secure the payment of $8,754, with interest at the rate of one and one half per cent, per month. These several mortgages described the premises mortgaged as all the interest of the mortgagor in the rancho San José de los Moquelumnes and Hicks’ Bridge, without other description, so far as the present record discloses; but it is stipulated that the interest held by the mortgagor in said rancho at the date of the aforesaid several mortgages, was an undivided interest of between one fourth and one third of the entire rancho. McCauley, having assigned the indebtedness which these several mortgages were given to secure, to Tevis, the latter, in a proceeding instituted by him for that purpose, obtained a decree of foreclosure in the Sixth District Court against Hicks, of all the premises described in the several mortgages, except the Hicks bridge, and an order of sale of the mortgagor’s interest in the rancho San José de los Moquelumnes, “that is, such interest as he had at the date of
The return was made and filed in the Clerk’s office, on the 12th day of May, 1868.
From the terms of this return, it is difficult to determine precisely what the Sheriff did under and by virtue of the writ. The Sheriff states that he served the same “by placing John F. McCauley in quiet and peaceable possession of all the interest and possession that William Hicks (defendant) had on the 30th November, 1861, 29th November, 1862, and 19th November, 1864, or has since acquired or had in the land mentioned and referred to in said writ, so far as the same could be ascertained by him; and that he notified every person occupying the said land of the possession of said John F. McCauley.” It does not state that he ejected or removed William Hicks from said premises, or any portion thereof, nor does it state that he put McCauley in the exclusive possession of the premises, or any portion thereof, or in the joint possession with others. By the command of the writ, the Sheriff was required to eject and remove William Hicks from every portion of the lands, and to place McCauley, without delay, in full possession of all the right,
From affidavits and the stipulations of the parties found in the record, it appears that at the date of the execution of the several mortgages by Hicks, up to the date of the Sheriff’s sale of the mortgaged premises to McCauley on foreclosure, Hicks was the owner of an undivided interest in the entire eight square leagues comprising the Bancho San José de los Moquelumnes, to the extent of between an undivided one fourth and one third part thereof; that during all this time, and for several years prior to the 30th day of November, 1861, he was in the exclusive possession and occupancy of two distinct parcels of said rancho, one known as ‘ ‘Hicks’ Pocket,” containing about eight hundred acres, and another, known as the “Tule Field,” containing about six hundred acres; that for some time prior to- November 30, 1861, and continuously since that time, Hicks resided with his family in a house located on that parcel known as ‘ ‘Hicks’ Pocket that on the 4th day of June, 1866, Mrs. Sarah B. Hicks, wife of William Hicks, defendant, by deed of gift from one
Says Mr. Justice Shafter, in delivering the opinion of the Court in Carpenter v. Webster (27 Cal. 545): “It is manifest that by the very law of the relation existing between tenants in common, each and every one of them has the right to enter upon and occupy the whole of the common lands and every part thereof. The rule that tenants in common hold their lands by unity of possession, inculcates something more than the technical truth that the possession of one tenant is prima facie the possession of the other. In our judgment, it also involves the doctrine that the tenants respect
It is clear, therefore, that as the mortgagor, Hicks, at the dates of his several mortgages, had, and at no time since said dates, has had any right to the exclusive possession in severalty of the particular portions of the rancho known as “Hicks’ Pocket” and the “Tule Field;” the purchaser at the sale upon foreclosure of such mortgages acquired no right to the exclusive possession thereof, as against any other tenant in common of the entire rancho, and as Hicks, at the date of his several mortgages, had a right to the possession and occupancy of the lands embraced within the limits of the entire rancho, and every part and parcel thereof, in common with his co-tenants, McCauley, as the purchaser of that interest and right, on obtaining the Sheriff’s deed therefor, was and is entitled to the possession of every part and parcel of the entire rancho, in common with, but not to the exclusion of, other parties who hold interests in the entire rancho, not derived from or through his mortgagor, Hicks.
Under and by virtue of the writ of assistance of the 7th of May, 1868, issued to the Sheriff, that officer was authorized and empowered, and it was his duty, to place McCauley in the possession of every part and parcel of the lands described
When, however, as in this case, the return fails to disclose facts from which the Court can clearly determine whether or not the writ has been fully executed, and it is made to appear to the Court, by affidavits, not contradictory of the return, but explanatory thereof, that the writ has not been fully executed, it is undoubtedly competent and proper for the Court, on motion of the party for whose benefit the original writ issued, to order and direct an alias writ to be issued; and the rights of the applicant in the premises, by virtue of his purchase, having been fully disclosed to the Court, the Court, in its order directing the writ to issue, should specifically-direct the proceedings of the officer in the execution of the writ.
From the return of the officer upon the original writ in this case, it does not appear—nor does it appear from any portion of the present record—that, in the execution of said original writ, Hicks, or any one else, was removed from the premises described therein, and it does appear from the record that the officer failed to fully execute the writ, in that he did not place McCauley in the possession of the entire rancho in common with his co-tenants. It further appears, that Mrs. Hicks, wife of William Hicks, holds in her own right, as her separate property, an undivided interest in the whole rancho, derived from a source independent of her husband; hence, she is not liable, under any writ to which the applicant has shown himself entitled, to be ejected or removed from the rancho, or any portion thereof; but she,
From these views it follows that the order of the Court below was entirely inadequate to the enforcement of the rights of McCauley under the decree of foreclosure, and erroneous in withholding further action against Hicks and wife and H. C. Swain.
The said order is therefore reversed, and the Court below directed to enter an order directing an alias writ of assistance to issue, to be enforced in accordance with the rights of the parties, as defined in this opinion