Kendall v. Clark
Before: Terry
Synopsis
A complaint against a sheriff and his sureties for selling, under execution, the homestead of plaintiffs, which sets out that the sheriff was in possession of a certain execution against plaintiff J. Kendall, and, under color of said execution, wrongfully and illegally entered upon and sold certain property, the homestead of plaintiffs, and averring damages in the sum of two thousand dollars, the value of the property is insufficient, as the same does not state facts sufficient to constitute a cause of action.
No damage has or can result from such a sale. If the property sold was a homestead, the sheriff's deed conveyed nothing. The purchaser at such sale could acquire no right to the property, nor could the plaintiff suffer any injury.
Terry, C. J., delivered the opinion of the Court Field J., and Burnett, J., concurring.
The complaint does not state facts sufficient to constitute a cause of action.
The plaintiff sets out that Clark, who was sheriff of Calaveras, under an execution against plaintiff J. Kendall, levied on and sold certain property, which was the homestead of the plaintiff, and claims damages in two thousand dollars.
From the complaint itself it is clear that no damage has or can result from such sale. If the property sold was a homestead, the sheriff’s deed conveyed nothing; the purchaser at such sale could acquire no right to the property, and the plaintiff suffer no injury-
Judgment reversed.
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