Redman v. Bellamy

Appeal from the Seventh Judicial District.

This was an action of ejectment brought in the County of Santa Clara, by the plaintiff, as a purchaser ar Sheriff’s sale, to recover a tan-yard, and other real estate in said county, adjoining the town of .Santa Clara. The venue for the trial, by consent of parties, was changed to Contra Costa County, and the case tried by the Court without a jury. The material facts of the case, as found by the Court, were as follows: First, that the defendant was then and had been in possession of the lands in dispute since 1845; second, that on the 2d of December, 1850, the defendant was appointed, by the Probate Court of Santa Clara County, administrator of the estate of Thomas Park, deceased, and on the same day gave bonds in the sum of $6,000 for the faithful discharge of the duties of his office, in which bond Peter J. Davis and James T. Beed were his sureties; third, that on the 27th day of October, 1851, the defendant executed to his said sureties a mortgage, of the property in question, to indemnify them against their liability on the said official bond; fourth, that on the 7th of February, 1852, the defendant and his sureties confessed judgment in the action of the People, for the use Paby & Co., on the said official bond, against them, for the sum of 1583 and costs, money of the estate of the said Parks due them, received and squandered by the said Bellamy, as administrator; that on the same day, the said Bellamy confessed judgment to his said sureties, Davis & Reed, for the said sum, and authorized the Court to enter judgment against him of foreclosure and sale of the mortgaged premises, [248] which was * entered accordingly; that on these judgments, executions were immediately issued, and the mortgaged premises levied upon and sold to the plaintiff in said action, J. W. Redman, on the 5th of March, 1852, and that on the same day, John Tontz, the Sheriff of the County of Santa Clara, executed to him a good and sufficient deed therefor; fifth, that a few days before the Sheriff’s sale, the defendant; in an another action at the suit of William C. Jones, served a notice on the Sheriff, claiming his homestead, etc., out of the property levied on in said action, being the same property in controversy; sixth,, that the defendant was lawfully married to Maria Jesus de Bernal, now living with him as his wife, in the County of Santa Clara. Evidence to maintain each of the foregoing facts was offered by the plaintiff, and excepted to by the defendant, but it was admitted by the Court. The defense relied upon mainly by the defendant, in his answer, and at the trial, was, that he was not in possession in his own right; that the property belonged to his wife, and not to him; and to maintain this issue, offered evidence to show that Maria Jesus Bernal was his lawful wife, and was living with him, the defendant, on the land in question, which had been in their possession since 1845. Defendant also offered in evidence the original grant for the land, by Manuel Castro, December 7th, 1845, to Maria Jesus Bernal, together with the petition and proceedings thereon; also, the expediente, with the depositions of Pico, Tates and others, to which plaintiff objected. The evidence offered was excluded by ilie Court, and defendant excepted. The defendant then offered the declaration of intention to pre-empt the said lands, made December 31st, 1849, which was also excluded •on objection by plaintiff, to which defendant excepted.