Marriner v. Smith

By the Court, Sawyer, J. On the 16th day of November, 1861, the defendant, Smith, recovered a judgment upon a promissory note in the District Court for the County of Placer, against one D. B. Goode for the sum of four hundred and sixty-four dollars. At the date of said judgment said Goode was the owner of the lands .described in the complaint, which lands constituted his homestead. Subsequent to the entry of said judgment, an instrument of abandonment of said homestead was duly executed and acknowledged by said Goode and wife, and regularly recorded, and the premises were conveyed by said Goode and wife to plaintiffs; but whether tire abandonment and conveyance were contained in one instrument, does not appear. In October, 1863, subsequent to said conveyance, Smith procured an execution to be issued upon his said judgment against Goode, and placed it in the hands of the defendant, Gooding, Sheriff of Placer County, who was proceeding thereunder by the direction of said Smith to sell said lands. Plaintiffs thereupon commenced this action to restrain the sale, and thereby prevent the defendants from further clouding their title, and to procure a cancellation of the judgment as a fraud upon their rights. In addition to the foregoing facts, the - plaintiffs [651]allege in their complaint, that, on the 5th day of November, 1861, after the commencement of said suit by Smith against Goode, and before the entry of judgment therein, said Goode and said Smith settled said suit, and said Goode delivered to said Smith a horse of the value of three hundred dollars, and other property specified, exceeding in value, in the aggregate, the amount due in the matter in suit, and that said Smith accepted the said property in full payment and satisfaction of the entire amount due, and in consideration thereof, agreed with said Goode to dismiss said suit, and that the same should not be further prosecuted; that said Goode, relying upon said promise, and supposing the said suit would be dismissed, paid no further attention to it; that said Smith, in violation of said agreement, and without the knowledge or consent of said Goode, and in fraud of his rights, did, nevertheless, cause said judgment to be entered by default; and that said judgment was thereby obtained by fraud, upon a demand which had been fully paid, satisfied and discharged. The Court found the facts to be as alleged, and rendered a judgment annulling and setting aside the said judgment, also perpetually enjoining any sale under it; from which judgment defendants appeal.

The grounds of appeal are, that the facts alleged in the complaint, and found by the Court, are insufficient to entitle plaintiffs to the judgment rendered, or to any relief.