Mills v. Tukey

Appeal from the Sixth Judicial District.

Application by D. 0. Mills for a writ of assistance to-obtain possession of an equal undivided one-third interest in and to lot number four, in the Mock or square between J and K streets, and Fourth and Fifth streets, of the City of Sacramento. The proceeding in the Court below was instituted under and by virtue of Sec. 5 of an Act of the Legislature, passed April 3d, 1860, entitled “ An Act to provide for the collection of Delinquent Taxes in the City and County of Sacramento.” In 1859, the lot in question belonged to Judson Haycock and George B. Haycock, as owners of one-third; to Carsilla Tukey, as owner of one-third; and to Francis Tukey, the defendant, as owner of one-third thereof. The taxes assessed upon it for the fiscal year ending March 1st, 1859, amounting, with costs and charges, to $2,844 35, not having been paid by these parties, judgment for that sum was recovered against them, by virtue of the statute above mentioned, on the twelfth day of November, 1860, in the District Court of the Sixth- Judicial District, in favor of The People of the State of California. Under this judgment, execution was issued against the said parties, directed to the Sheriff of the City and County of Sacramento, commanding him to make the said sum of money out of their personal, or, if that were insufficient, out of their real estate. He levied upon and sold the premises above described on the twenty-third day of September, 1861, to D. 0. Mills, for $2,832 90, and delivered to him a certificate of sale thereof. Afterwards, on the fourteenth day of April, 1862,'more than six months having elapsed^ since said sale, and the term of office of the Sheriff having expired\\ and he having left the State, a deed was executed to Mills by BX B. Redding, who was the deputy of said Sheriff up to the expiration of his term of office. At and prior to the time when the judgment for taxes was recovered, D. 0. Mills held a mortgage fpr $6,000 on the above premises, one-third whereof, $2,000, was due from the defendant, Francis Tukey. After the recovery of said judgment, but before the sale thereunder, D. O. Mills became, by' purchase, lie owner of the one-third interest in said premises which belonged to Judson and George B. Haycock. When the property was bought by D. O. Mills at the Sheriff’s sale, he and the said Carsilla Tukey and the defendant, Francis Tukey, were, and have ever since remained, in possession, each of a third of the premises. The claim of D. 0. Mills to the one-third interest of Carsilla Tukey having been satisfactorily adjusted, and the defendant having refused to surrender possession of the third held by him, this proceeding was instituted for its recovery. Prior to the sale of the premises for taxes, to wit: on the eighteenth day of July, 1861— Francis Tukey, then being indebted to D. 0. Mills in the sum of $2,000 on the mortgage aforesaid, and in other sums of money, and desiring to procure a loan of $4,000 to cancel said indebtedness, and also enable him to pay his proportion of the said taxes, proposed to said D. O. Mills that the latter should temporarily take from him a mortgage for $4,000 upon his third interest in said premises, and assign said mortgage to the party from whom said Tukey should afterwards be able to procure said loan. To this proposition, as Tukey believed he could in this way obtain the loan, Mills assented, and the $4,000 mortgage was executed to him. Tukey failed to either obtain the $4,000 loan, or to pay the taxes, wherefore the property was sold, and the $4,000 mortgage still remains in Mills’ hands unassigned. Upon these facts appearing in the petition and answer, and from the evidence on the trial, the District Court ordered the writ of assistance to issue. Defendant moved for a new trial, which was denied, and from these orders he appeals.