Gregory v. Haynes
Before: Baldwin
Synopsis
A decbee reciting that “ this action having been continued, in consequence of the death of the plaintiff, by his executor, Samuel Webb, and the jury having found a verdict for the plaintiff, it is now ordered,” etc. clearly shows the suggestion of the death of the original plaintiff, and a continuance of the cause or a revival of it, in the name of the executor. At all events, any irregularity in this respect cannot he attacked collaterally.
A purchaser of land subsequent to a suit brought against his vendors to quiet title, and to a notice of Us pendens filed in the County Recorder’s office, is a mere volunteer, who takes subject to any decree in the suit.
This decree is conclusive as to plaintiff, who was the executor of deceased, with general power under the will to sell the real estate of his testator, and conclusive as to the defendants and their vendee, the purchaser here.
A defendant in ejectment, entering under a deed executed by order of a Court of competent jurisdiction, enters under color of title. He is not anaked trespasser, and may set up an outstanding title in a third person.
Mere prior possession of land, cannot prevail against the present possession of defendant, taken under claim of title derived, regularly or not, from the rightful owner.
Defendant had been let into possession under judgment in ejectment by him against C. This judgment is afterwards reversed. C sells to G. Held, that defendant’s possession was sufficient, until restored by due course of law, to break the force of the claim of G, based upon the prior possession of C.
If an executor, claiming power under a will to sell, and in possession under judgment against C as above, execute a deed to defendant, who takes possession thereunder, then defendant can set up outstanding title in the executor or his testator, as against G, even though he could not, from defects in his deed, or want of power in the executor, assert title against the estate of deceased.
Quere, whether, under our statute, an executor with power in the will to sell real estate, may not sell without the preliminary proceedings required for the sale of real estate of deceased persons to pay debts; and, whether such sale would be a nullity, if approved by the Probate Court ?
Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.
Ejectment for a lot in San Francisco. The complaint sets forth a deraignment of title from Hyde, Alcalde of San Francisco, in 1847, through a number of mesne conveyances to the plaintiff. The answer admits the original source of title; but denies that, on the 3d day of June, 1854, when one Sarah Boston, and William Boston, her husband, conveyed the lot to one David Calderwood, they had title to the same, as complaint charges, and defendants therefore deny that the said Sarah and William conveyed the property to David Calderwood. The plaintiff claims in his complaint, title by or through this conveyance.
The answer sets up, further, that on the 13th of February, 1854, William Boston and Sarah Boston, by their Attorney in fact, specially constituted, conveyed to a certain John A. Wen-borne the premises in question; that Wenborne died on the 4th June, 1854, leaving a will, wherein Samuel Webb was left his executor, with power to sell his estate without order of sale; that on the 25th September, afterwards, Samuel Webb sold this property to C. C. Webb, which sale was confirmed by the Probate Court, and on the 29th February, 1856, C. C. Webb sold and conveyed to defendant, Haynes.
The answer sets up a further defense : that on the 13th May, 1854, Wenborne, then being in life, filed a bill to quiet title to the premises, in the Superior Court of San Francisco. The bill was filed against William Boston and wife—a notice of lis pen-dens was filed at the same time in the office of the County Recorder. The suit was tried on the-day of October, 1854, and a verdict rendered for the plaintiffs, and a decree rendered in accordance with this finding.
[594]The present case was tried by a jury, and a verdict for the defendants rendered, and judgment accordingly.
On the trial, divers exceptions were taken by the plaintiff, and these constitute the matters for revision on appeal.
It will be observed that the plaintiff, in deraigning his title, shows that on the 3d of June, 1854, Boston and wife conveyed to Calderwood. This was by quitclaim deed. To break this chain of title, the defendants aver that before this time, viz: on the 13th of February, 1854, Boston and wife conveyed, by their Attorney in fact, to Wenborne, from whom the defendants deduce title, and the defendants further assert that in May, 1854, Wen-borne brought suit to quiet title, a notice of lis pendens being filed. A decree was rendered in this suit in October, 1854.
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