36 Cal. 147 | Cal. | 1868
We are satisfied, as the Court below must have been, that this case presents another instance of an indirect effort, through other parties, to evade the process of the Court and deprive the plaintiff in an action to recover land, after a long and successful litigation, of the fruits of his judgment.
We have no doubt of the propriety of the order. The respondents charge, and upon the facts disclosed by the record, we are satisfied, that the judgments obtained, and the proceedings had under them, in the two cases brought by Fitzgibbon and Pell against Quinn and Carroll, were collusive between the parties to those actions, and for the purpose of evading the writ, and depriving the plaintiff of the fruits of his judgment in this action. Collusion is nowhere directly or squarely denied in the respondents’ affidavits. They say, it is true, that they are in possession, claiming adverse to both parties, and for themselves, and not for Carroll and Quinn; but this is evasive, and does not meet the issue. They nowhere aver that they have a good title in fact. The allegations on this point are loose and evasive. It appears that on the 22d of April, 1867, Pell and Fitzgibbon took the quitclaim deed from one Lynch of the respective tracts which they recovered, and within a very few days afterward commenced their suits. This is the only title they pretend to have. It is nowhere shown that Lynch had any title. It is said he claimed a title founded on possession; that is all. Upon this they claim to have recovered. The deed was taken, the actions brought, judgment recovered against defendants, and executed by putting the plaintiffs, respectively, in possession within a few days after the judgment in Wetherbee v. Dunn was affirmed, and while the remittitur was stayed. The circumstances required expedition, and
In Leese v. Clark, 29 Cal. 671, we said: Prima fade 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. This presumption is not overthrown by showing that they came in as tenants of John Clark, without showing affirmatively that John Clark also came in before suit brought, or, at least, that he has come in under a title adverse to that of the defendant, not in collusion with him, and under such circumstances as would entitle him to the protection of .the Court, on a proper application, against the writ.” The word “ defendant,” where it occurs the second time in the foregoing extract, by a typographical error reads “plaintiff” in the report. (Page 671.) It should be defendant in the report, not plaintiff". We have corrected the error once before, (Mayne v. Jones, 34 Cal. 487,) but as counsel still quote it as printed, we call attention to it. again, and suggest that attorneys make the correction in their volume of reports. We also said in that case, that “the fruits of a successful litigation cannot he wrested from the prevailing party, and the process of the Courts evaded, upon a mere claim set up under suspicious circumstances, resting upon affidavits alone, unless the case made by that kind of proof is reasonably certain.” (34 Cal. 672; see also Mayne v. Jones, 34 Cal. 484.) ' In this case there is no title, or fact showing
We are satisfied that the writ ought to be executed. If the parties resisting the application in the name of respondents could succeed upon the case as presented by this record, there would be little difficulty in evading the process of the Courts in all cases of" the recovery of lands, and such actions would become nugatory.
The parties in possession came in under Pell and Fitzgibbon, and stand in no better position than they. If they have any rights in the premises, they must be vindicated in an action brought for that purpose, in which their title may be investigated.
They have not shown a prima fade case to justify a refusal by the Court to execute its process in this case.
Order affirmed, and remittitur directed to issue forthwith.