Maskey v. Lackmann

SHAW, J.

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