Einstein v. the Bank of California

COOPER, C.

Appeal from order granting a temporary injunction. It appears, from the verified complaint, that in March, 1899, Jacob Einstein, the husband of plaintiff, in consideration of love and affection, conveyed to her by deed the premises described in the complaint, known as the Red Mountain Ranch, which deed was recorded' June 21st of the same year. The defendant corporation afterwards, during the year 1900, commenced two actions against Jacob Einstein, the grantor of plaintiff, which resulted in money judgments against said Jacob Einstein.

Upon these judgments executions were duly issued, placed in the hands of defendant Jennings, as sheriff of San Diego County, with instructions to levy upon the premises described in the complaint, standing on the records in the name of plaintiff.

The defendant Jennings accordingly levied upon said real estate, and duly advertised that he would sell the same on February 4, 1901, in order to satisfy said judgments. This action was commenced January 14, 1901, for the purpose of enjoining the sale.

. On February 2, 1901, after order to show cause, and upon the verified pleadings, and certain affidavits filed by defendants, the court made the restraining order complained of, enjoining the defendants from selling the said property until

[49]

the further order of the court in the premises. It is the settled rule in this state that an order granting or dissolving an injunction

pendente lite

is a matter of discretion with the lower court, and such order will not be reversed here, except where it plainly appears that there was an abuse of discretion.

(Porter

v.

Jennings,

89 Cal. 442.) It is equally well settled that a sale of lands upon an execution issued against the grantor of the person holding the legal title will cast a cloud upon the title. (High on Injunctions, 3d ed., sec. 379; Freeman on Executions, 3d ed., vol. 3, sec. 438;