Mitchell v. Davis

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Horton, J. concurring.

This is an action of forcible entry and detainer. The case has been previously before this Court, and will be found reported in 20 Cal. 45. It was there held that the evidence showed that the plaintiff was in possession of the premises at the time of the alleged entry of the defendant, as the agent of one Storer, and therefore the action should have been in the name of Storer, and not the plaintiff. It seems that Storer had recovered judgment, in an action for the possession of the premises, against Davis; and the return of the Sheriff to the writ of restitution was, that he had “ put Storer, by his representative, James Mitchell, in peaceable possession of the within described premisesand as there was no other proof respecting the character of the possession of the plaintiff, it was held that his possession was merely as against Storer.

At the trial, had after the return of the remittitur, the plaintiff proved that he held possession at the time of the defendant’s entry, not as agent, but as the mortgagee of Storer, by his consent; and under instructions from the Court upon this subject, the jury found a verdict in favor of the plaintiff, from which the defendant appeals.

The plaintiff introduced in evidence at the trial, the judgment, execution, and return of the Sheriff thereon in the case of Storer v. Davis, and this is alleged to be in error. This evidence was admissible to prove the right and extent of the possession of the plaintiff, and that the defendant was estopped from contesting the same. The return of the Sheriff that Mitchell was the “ representative ” of Storer, was open to explanation by proof showing in what way he was his representative, and in what character he took the possession. This objection is therefore overruled.

[383]It is urged that the proof showed that the possession was delivered to Storer and not to Mitchell, and that there was no proof of actual possession by Mitchell at the time of the alleged entry; and the previous decision of this Court in the case is referred to in support of this position. The evidence in the case as now presented is very different upon this point from what it was on the previous appeal. It now appears that one Hunter was the attorney of Storer, and as such directed the Sheriff to put Mitchell in possession under the writ; that Mitchell had a mortgage upon the premises, and though he may have been put in possession as agent of Storer, yet the proof is that he held at the time of the defendant’s entry as mortgagee, and not as agent. This evidence shows (that the actual possession was in Mitchell, and not in Storer. The possession of a mortgagee is not in fact the possession of the mortgagor. As was said in the opinion on the former appeal: “ The fact of possession, and not the title to the premises or the right of possession, can alone be inquired into.” It is urged that the previous decision upon this point has become the law of the case, and conclusive upon the parties; and numerous decisions of this Court are referred to. An examination of those cases will show, however, that they apply only to principles of law announced in a case; and not to mere questions of fact, which may have been passed upon. For instance, it was held in this case on the previous appeal, as a question of fact, that the evidence showed that the possession of the plaintiff was as the agent of Storer, and not by any right in himself; and it was further held as a principle of law, founded upon this fact, that the possession of the agent was the possession of his principal for the purpose of this action, and therefore the action should have been in the name of the principal. The determination of this principle has become the law of the case ; but the question of fact, whether or not the plaintiff was the agent of Storer, is liable to be changed by further evidence showing the true and a different state of facts; and the action of this Court upon this question of fact does not operate as a bar or estoppel upon the plaintiff from showing the true facts of the case. If no further evidence had been introduced by the plaintiff on the second trial upon this point, there might have been some grounds