Dresser v. Allen

California Court of Appeal Jul 8, 1914 No. Civ. No. 1526.Published

Before: Conrey

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Holding. The court held that a non-party in possession of property cannot resist a writ of possession when their claim of possession is derived from a failed attempt at abandonment by the judgment debtor rather than independent adverse possession. Because the respondent's possession was subordinate to the judgment debtor's continuous possession until after the action commenced, the respondent is subject to the writ.

Issues

Whether a non-party claiming independent adverse possession can be evicted via an alias writ of possession issued against the original defendant.
Whether the respondent's claim of possession, derived from an attempted abandonment by the judgment debtor, constitutes a valid defense against the enforcement of a judgment.

Disposition. reversed

Quotations verified verbatim against the opinion

“Abandonment cannot be made in favor of a particular individual, nor as a means of transfer from one party to another.”

“It being thus established that Mary E. Dresser’s possession of the land was never abandoned by her until on or after March 16, 1912, and that the only possession obtained by respondent was by means of and subordinate to that of his mother”

Synopsis

Action to Quiet Title—Proceedings to Put in Possession—Matters Determinable.—In proceedings to put in possession a defendant who has recovered judgment in an action to quiet title, the court cannot determine any proprietary rights of a person in possession of the property who was not a party to the action.

Id.—Person in Possession Who is not Party to Action—Presumption and Burden of Proof as to Bights—If such person came into possession at any time after the commencement of the action, it is presumed that he came in under the plaintiff, and upon the issue pertaining to his right to remain in possession the burden is upon him to show affirmatively that his possession is rightful and under a title that has not been determined in the action, and that such possession was not taken by collusion with the plaintiff.

Id. — Abandonment or Relinquishment — Whether Effectual to Transfer Property.—Abandonment of property cannot be made in favor of a particular individual, nor as a means of transfer from one person to another. Relinquishment by one to another is not abandonment.

Id.—Writ of Possession—Occupant not Party to Original Action— Whether may Resist.—The enforcement of a judgment recovered in an action to quiet title cannot be resisted by a person not a party to the action, who asserts the right to retain the premises under a claim of possession adverse to the person against whom the judgment was awarded, when it appears that such claim is founded upon the mere declaration of the latter of an abandonment of the premises to the former and recognition of his claim without any actual removal from the premises.

Id.—Alias Writ oe Possession—When Lies.—In such a case the prevailing party is entitled to an alias writ of possession for the possession of the property.

CONREY, P. J.

The defendant Sylvester Kipp presents this appeal from an order made and entered on August 2, 1912, whereby the court vacated a certain order of date April 29, 1912, upon James S. Dresser to show cause why an

alias

writ of possession should not issue against him on the judgment entered in said action, in so far as said order to show cause related to or affected the right of said J ames S. Dresser to the possession of the premises described in the judgment in this action; and whereby the superior court ordered that said

alias

writ of possession against said James S. Dresser should be denied and that he should recover his costs.

This action was commenced by Mary E. Dresser against Levi Allen, Sylvester Kipp, and H. P. Weis for the purpose of quieting plaintiff’s title against the defendants. Defendant Kipp answered claiming title to the property described in the complaint, and the judgment of the court established his title against the plaintiff and awarded him a writ of possession against her. That judgment was affirmed in this court on November 20, 1911

(Dresser

Allen,

17 Cal. App. 508, [120 Pac. 65]). A writ of possession having been issued on February 21, 1912, the same, with the sheriff’s return indorsed thereon, was filed on April 20, 1912. The return shows that on March 16, 1912, the sheriff entered upon said premises and found said Mary E. Dresser upon the same and notified her that if she did not vacate said premises within ten days after said date, he would dispossess her of said premises by forcibly removing her from the same; that on the

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twenty-sixth day of March, 1912, the sheriff again entered upon said premises described in said writ for the purpose of executing the same, and found that said Mary B. Dresser had vacated the said premises and that James S. Dresser and M. C. Dresser were upon said premises and claimed that they had adverse possession of said premises under a tax title, and claimed that such title was not derived from the plaintiff in said writ named. Bor said reasons the sheriff did not place the defendant Kipp in possession of the premises.

Dresser v. Allen

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Synopsis

CONREY, P. J.

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