Rowe v. Bradley
Before: Baldwin
Synopsis
Appeal from the Fourteenth District, County of Sierra.
The facts, as disclosed by the opinion of the Court, are as follows : This was an action of trespass, in which the plaintiff complains that in April, 1857, he owned and possessed a third part of a tract of mining ground, and that defendants broke into and trespassed upon it, and dug up and converted the dirt and gold-bearing earth to the value of $2,000.
The defendants answered, denying that the claim was the property of the plaintiff, or that they committed any trespass on the property of the plaintiff, and generally denying all the allegations of the complaint. And further say that “ George Davis, one of the defendants herein, is Deputy Sheriff in and for the County of Sierra ; that by authority of his said office, and by virtue of an attachment issued from the District Court of the Fourteenth Judicial District in and for Sierra county, in an action before said Court, in which J. W. Bradley was plaintiff, and F. M. Rowe defendant, he levied upon or attached the said F. M. Rowe’s interest in the mining claim described in plaintiff’s complaint in this action; that thereupon the plaintiff in this case claimed the property as his own, and the said Sheriff, in conformity with the statutes in such cases made and provided, proceeded to try and determine the rights of property; that the jury called to determine said matter decided in favor of said plaintiff, J. W. Bradley, as will more fully appear by reference to the proceedings then and there had, which defendants pray may be made a part hereof.
“ And that, afterwards, by virtue of a judgment and execution issued from said Court, and to him directed, and by virtue of said decision of said jury, and of the statutes in such cases made and provided, satisfied the claim of said J. W. Bradley out of the said F. M. Rowe’s interest as aforesaid, as the proceedings in said case on record will more fully show; which record, return and proceedings, defendants introduce and make a part of this answer.” The answer was sworn to by Davis. Afterwards, defendants amended their answer to this effect: “ That they have been informed that plaintiff claims to have purchased the mining claim mentioned in his complaint from one J ames Finney; but defendants aver that, if such conveyance was made, it was in fraud of the rights of defendant, J. W. Bradley, and made for the purpose of delaying and hindering him from collecting a debt due from F. M. Rowe to him, which debt was the same sued for in the case of J. W. Bradley v. F. M. Rowe in this Court, the record of which suit is made a part hereof; and that said purchase was made by F. M. Rowe, defendant in the last mentioned suit, and the money therefor furnished by him, and the name of A. C. Rowe used in said conveyance from Finney to deceive and defraud said defendant, J. W. Bradley.” This was sworn to by Bradley.
Baldwin, J., delivered the opinion of the Court—Field, J., concurring.
One Finney, the vendor of the claim to Rowe, was examined as a witness. It is assigned as error, that he was admitted to testify when he was incompetent. The question before the jury was not as to the original title as it stood before the witness sold, but as to whether the claim belonged to plaintiff, F. M. Rowe, as whose property it was levied on by the officer.
It is true that the witness had not been paid all the purchase money; but this made no difference. This was not an action to try the title ; and if it were, in this state of the question before the jury, the vendor, for all that appeared, was a competent witness.
Another assignment of error is, that no trespass was committed, because the officer found F. M. Rowe, the debtor in attachment and judgment, in possession, and therefore had a right to seize the property. But the very question of fact was, who was in possession ? and the possession of real estate usually follows the ownership. The mere fact that F. M. Rowe was on A. C. Rowe’s ground, is no justification to the officer to go there and dig up the soil, or take the earth or gold taken from the land.
The next error assigned is, that no ouster was made, but merely the rights, title and interest of the judgment debtor attached; but no ouster in this sense is necessary to maintain an action of trespass ; any unlawful entry is enough. And the officer, when he put a Receiver in possession of plaintiff’s property, of asserted through himself or another an unlawful dominion over another’s property, is a trespasser. There is no difference between the officer going, without right, upon the plaintiff’s land, and getting Lyre to seize or take the plaintiff’s gold or earth, and doing it himself.
In both cases, such an act is a trespass and conversion; and all concerned, aiding and abetting, are original trespassers. • It is not the case of a co-tenant paying over money or gold dust to the Sheriff, but [231]the Sheriff getting the co-tenant to aid him in seizing and taking property of the plaintiff.
The next objection is, that the damages were excessive. There was some evidence tending to show that in a few weeks the amount coming to the plaintiff’s share was $1,745. The jury might infer that some additional amount was taken out the balance of the time. Besides, there is no specific denial of the amount of damages laid in the complaint, though there is of the alleged causes of damage.
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