Flandreau v. Downey

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover possession of two lots, with the buildings thereon, in the town of Downieville. The plaintiffs claim title under two judgments rendered in their favor against the defendants, dated October 2d, 1858, to enforce mechanics’ liens on said property. These liens were duly recorded September 29th, 1857, and a credit had been given on the debt for one year from March 13th, 1857. The complaints, in the action to enforce these liens, were filed September 13th, 1858. The summonses issued thereon were dated the same day; but were not placed in the hands of the Sheriff until two days thereafter, having remained in the meantime in the hands of the Clerk. The plaintiffs purchased the property at the sales under them judgments, and their deeds bear date October 17th, 1859.

To rebut this evidence of title the defendant showed that How[356]ard & Ladd recovered a judgment against him, which was docketed July 7th, 1858, under which the property was duly sold at Sheriff’s sale, and purchased by Ladd; and that Ladd had conveyed the same to him since his purchase, by a deed bearing date October 8th, 1861. As the title obtained by the plaintiffs, under their judgments and sales thereon, relates back to the date of the recording of their mechanics’ liens, and as that was prior to the docketing of the Howard & Ladd judgment, under which the defendant claims a new and subsequently-acquired title, it follows that under this evidence the plaintiffs had the prior and better title to the premises.

But the defendant introduced further proof. He offered in evidence the judgment roll, findings, and remittitur from the Supreme Court, in a case brought by the present plaintiffs against White, Howard & Ladd, to enjoin the latter from selling the premises under the judgment of Howard & Ladd v. Downey, on the ground that such sale and the title acquired under it would be a cloud upon their title acquired at the sale under their judgments. The judgment in that case was as follows: “ It is hereby ordered, adjudged, and decreed that the injunction heretofore granted and issued in said cause be and the same is hereby forever dissolved, and the complaint of said plaintiffs be and the same is hereby dismissed. It is further ordered that said defendants have and recover judgment of, from, and against said plaintiffs for their costs in this behalf expended.” That case was appealed to this Court, when the judgment was affirmed on the ground that the actions to enforce the mechanics’ liens were not commenced, within the meaning of the statute, until the fifteenth day of September, as the summonses were not issued until that day, and therefore they were not commenced within six months after the credit had expired, as required by the statute. (The case will be found reported in 18 Cal. 639.)