Anthony v. Wessel

Burnett, J., delivered the opinion of the Court-—Field, J., concurring. It is alleged in the verified complaint, and admitted in the [104]answer, that defendant executed a mortgage to plaintiff, which was foreclosed, and the mortgaged premises sold to plaintiff on the 18th day of April, 1853, by Charles K. Swope, then sheriff of Tuolumne county, and a certificate given to plaintiff; and that, on the 17th October, 1856, a sheriff's deed was duly executed to plaintiff, by James M. Stewart, then sheriff of the county aforesaid.

Upon the trial, the plaintiff read the complaint and answer, and then rested; whereupon defendant moved that the case be dismissed, which motion was denied; hut the Court required the plaintiff ¿o introduce the sheriff's deed, to which defendant excepted.

The defence is one which this Court would not regard with any favor, as it seems to have been purely technical, and not very conscientious, under the circumstances. But the rules of law are strict, and have been well settled. The plaintiff relied solely upon his legal title, and not upon prior possession. The title was in the defendant until a deed was duly executed by the proper officer. This question has been lately decided by this Court in the case of Dunn v. Boring. The new sheriff could not execute the deed. The complaint did not state facts sufficient to constitute a cause of action, and the defendant was not bound to demur. At the trial, the title was in defendant, and of course the plaintiff could not recover. The allegations of the complaint are clear and distinct that the deed was executed by the sheriff who did not make the sale; and the statement, that the deed was duly executed, does not mean that it was executed by the proper officer, but only in the proper manner.

Judgment reversed, and cause dismissed.