Mills v. Laing

LENNON, P. J.

This is an action in ejectment to recover .the property described in the complaint, which was acquired by one of the defendants from the plaintiff under a decree of sale in an action for specific performance, and was occupied by her for more than five years before this action was commenced.

The facts constituting the basis of the case are briefly as follows : In January, 1903, Laura J. E. Mills, the plaintiff, was the owner' and holder of the property here involved. Thereafter Charles Wesley Reed entered into a contract for its purchase, but being unable to pay Mary A. Fritz the balance of certain money which hQ had borrowed from her, he assigned his contract of purchase and the cause of action based thereon to her as security therefor. Mrs. Fritz was subsequently substituted as plaintiff in that action in the place of Reed, and on

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the twenty-ninth day of May obtained judgment against Mrs. Mills, providing in £>art for a sale of the property. On July 14,1908, the clerk of the court, pursuant to the judgment, executed a deed in the name of Mrs. Mills, conveying the property to Mrs. Fritz. The next day the deed was recorded. Thereafter, and on the thirtieth day of September, 1908, Mrs. Fritz sold the property to Isabella Laing, the only defendant in interest here, under a contract by which payment was to be made in installments. Mrs. Laing went into possession of the premises on the third day of October, 1908, and with her husband occupied them continuously down to the date of trial, and was in possession at the time of the commencement of this action, December 4, 1915, having theretofore, to wit, in September, 1915, made the last payment under her contract of purchase. However, after the judicial sale of July, 1908, and after Mrs. Laing had gone into possession of the premises under her contract, to wit, on the first day of December, 1908, Mrs. Mills appealed from that judgment without filing any bond staying execution. December 3, 1909, the judgment was reversed.

(Fritz

v.

Mills,

12 Cal. App. 113, [106 Pac. 725].) Upon a second trial of the action judgment went for Mrs. Mills, denied the plaintiff therein specific performance, and this judgment was, so far as we are here concerned, declared final in effect by the supreme court on June 21, 1915. (170 Cal. 449, [150 Pac. 375].) During this litigation Mrs. Mills paid no taxes on the property, they, by the terms of the contract of purchase between Mrs. Laing and Mrs. Fritz, being paid by the latter.