Shattuck v. Carson

Appeal from the Seventh Judicial District of Sonora County. The complaint set forth, that on the 9th day of February, 1852, the plaintiff purchased of one Griffith, a certain lot of land, for full consideration and bona fide, and refers to his deed for said lot; that an execution had issued from the District Court in the suit, Lindsey Carson v. J. A. Griffith, which has been levied on the same lot, and Griffith’s interest therein was advertised for sale by the sheriff, on the 19th of June, 1852; that Griffith had no interest therein; and that said sale, if it should take place, would cast a cloud upon plaintiff’s title. And that said land was exempt from execution, it being Griffith’s homestead. Prayer for injunction against Brockman, sheriff, and Carson, to prevent the sheriff’s sale; and a temporary injunction was granted by the Court.

The answer of Carson avers that Griffith’s liability accrued before the expiration of thirty days from the passage of the exemption act, and denies that the purchase of plaintiff was bona fide, (as he believes,) and insists on a sale, &c.; leaving the purchaser under execution, to contest the right with the plaintiff afterwards.

The Court decided, that if the judgment debtor had no interest in the property, nothing would pass by the sheriff’s sale, and until after sale, plaintiff had no ground of complaint, and gave judgment, denying the prayer and dissolving the injunction.

A motion for a new trial was made and refused, and plaintiff appealed.