Spencer v. Geissman

By the Court, Sawyer, C. J.; This is an action to recover land in Santa Clara County; Defendant had judgment, and plaintiff appeals on the judgment roll, without any statement.

The plaintiff relies on title derived from the defendant through a sale under a judgment and execution against him. The following are the material facts, as found by the Court: Prior to April 26th, 1861, defendant was in possession of a tract of land including the locus in quo, and he' continued in possession of the premises in controversy till October, 1864, and till after the commencement of this action. The whole tract so in defendant’s possession was included in one inclosure till after the recovery of a certain judgment by one Villagraña. On the 11th of October, 1864, said Villagraña recovered the judgment referred to against Geissman, defendant in this action, for the possession of a portion of [98]said tract so possessed by said defendant, but not the portion now in controversy, and for costs. The judgment was docketed on the same day. On the 15th of October, 1864, a writ of possession, including an execution for costs, was issued to the Sheriff, which was executed so far as to ¡Hit the plaintiff in possession of the portion of the aforesaid tract recovered in that action, and returned with the certificate of the Sheriff that no property could be found out of which he could make the costs. Prior to the entry of said judgment, the dwelling house in which defendant lived, together with the outhouses appurtenant thereto, were on that portion of said tract in the possession of defendant so recovered by Villagrana, but defendant had another dwelling on that portion now in controversy, but not recovered by Villagrana, which was occupied by men in his employ. On being turned out, under the writ, of that portion recovered by Villagrana, defendant moved his family into said other house on said portion now in controversy, and he continued to reside therewith his family until after the commencement of this action. On the 24th of April, 1861, the defendant then being a married man and the head of a family, executed in due form, and caused to be duly recorded in the Recorder’s office of the proper county, a declaration, declaring the xvhole of said tract, including the portion now in controversy, and that subsequently thereto recovered by Villagrana, to be his homestead, and no abandonment of homestead has ever been filed or recorded. Thus a part of the homestead, as originally established, was recovered by Villagrana, and a part, being the part in controversy, remained unaffected by the recovery. On the 16th of November, 1864, another execution for costs was issued on the Villagrana judgment. On the 28th of November, 1864, the Sheriff levied said execution on the premises now in controversy. On the 24th of December, 1864, the Sheriff, under said execution, sold all the interest of defendant to the plaintiff, Spencer. The proper certificate of sale was given to the purchaser and filed in the proper Recorder’s office, and six months thereafter having expired without any