Reynolds v. Hosmer

California Supreme Court Jul 1, 1873 No. No. 3,262Published

Before: Belcher

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Holding. The court held that a party whose property was sold under an erroneous judgment may, upon reversal, elect to sue the purchaser—especially if the purchaser was the assignee of the judgment—for damages rather than seeking to set aside the sale.

Issues

Whether a complaint must explicitly aver the existence of the subject matter of the litigation.
Whether a party may maintain an action for damages against an assignee of a judgment who purchased the property at a sale conducted under an erroneous decree.
Whether tenants in common may jointly bring an action for damages resulting from the loss of property sold under an erroneous judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is not usual, and ordinarily is not necessary, to aver the existence of the subject matter about which litigation arises.”

“The plaintiffs, under the rule stated, were clearly entitled to affirm the sale, and maintain their action for damages.”

“The reversal of a judgment gives a new right or cause of action against the parties to the judgment, and creates a legal obligation on their part to restore what the other party had lost by reason of the erroneous judgment.”

Synopsis

Complaint in Action eob Damages—In an action for damages caused by the sale of the plaintiffs’ real estate under an execution issued on an erroneous judgment, afterwards reversed, it is not necessary in the complaint to make a direct averment of the existence of the property, if that fact appears by necessary inference drawn from the facts stated.

Amendment to Pleading—If the Court, during the trial, grants leave to file an amendment to the complaint, and it is filed before the argument is concluded, and there is nothing in the record to show the other party was not present and consenting, the amendment will not be disregarded in the Supreme Court.

Idem.—The facts that the Clerk’s minutes show that leave was given to file an amended complaint, and that amendments only to the complaint were filed, do not furnish ground for wholly disregarding the amendments in the Supreme Court.

Reversal of Judgment.—If a judgment is reversed by the Supreme Court of the United States, with directions to the Court below to enter a decree in accordance with the opinion, and its mandate is filed in the lower Court, the judgment is set aside, even, if the lower Court does not make any order conforming its judgment to that of the Supreme Court, and if the lower Court denies a motion made to thus modify the judgment.

Sale of Land on Judgment Afterwards Reversed.—If real estate is sold on a judgment, and the judgment is afterwards reversed, the former owner has his election to either have the sale set aside and be restored to possession or to affirm the sale and maintain an action for damages.

Order Denying Motion to Set Aside a Sale Hot an Estoppel.— A person whose land is sold on an erroneous judgment, afterwards reversed, is not estopped from maintaining an action for damages by having had a motion to set aside the sale and be restored to possession denied.

Who Liable for Sale Made Under Erroneous Judgment. — One who takes an assignment of an erroneous judgment, and procures an execution to be issued on it, and becomes a purchaser of land sold under the execution, is not entitled to protection as a bona fide purchaser, and is liable in an action for damages caused by the sale.

Uncertainty in Complaint.—A defect in a complaint for uncertainty must be taken advantage of by special demurrer. It is not reached by a general demurrer.

Pleading Tenancy in Common.—An averment in a complaint, where there are several plaintiffs, that the plaintiffs own seven tenths of certain real estate, raises the legal presumption that they own it as tenants in common.

Tenants in Common May Join in Action.—Tenants in common may join as plaintiffs in an action for damages for the sale of land under an erroneous judgment, which is afterwards reversed; and if one of the tenants in common is dead, his executor or administrator may join as plaintiff with the other tenants.

By the Court, Belcher, J.: This is an action to recover damages. The defendant demurred and answered to the complaint. The demurrer was overruled and after trial the plaintiffs recovered judgment, from which the defendant has appealed. The points made relate to the sufficiency of the complaint.

It is insisted that the complaint is insufficient because it does not allege the existence of the property for the loss of which the plaintiffs claim damages.

It is alleged that the South Fork Canal Company was • organized for the purpose of carrying water, by means of a canal and flume to be constructed between certain points named; that an action was commenced against the company and others, and that such proceedings were had in the action that it was afterwards adjudged by the Circuit Court of the United States that the plaintiff in the action had a lien upon the company’s canal and flume for labor and materials furnished in their construction, and that the lien be foreclosed and the canal and flume be sold; that under and by virtue of this decree the canal and flume were sold; that the sale was approved, and thereafter a deed was made to the purchaser, describing the property as “ the canal, flume, and ditch known as the South Fork Canal, with the appurtenances thereof, situated,” etc; that the judgment was after-wards reversed by the Supreme Court of the United States, and it was by that Court adjudged and decreed that the plaintiff" had no lien on the canal and flume, extending, etc., a distance of sixteen and one quarter miles; and that at the time of the rendition of the judgment and decree by the Circuit Court, and at the time of the sale and the confirmation [627]thereof, the plaintiffs were the owners of seven tenths of said canal and flume, and the appurtenances thereof.

While in this there is no direct averment that the canal and flume were ever constructed, that fact clearly, and we think sufficiently, appears by necessary inference. It is not usual, and ordinarily is not necessary, to aver the existence of the subject matter about which litigation arises. If the action had been ejectment for the canal, it would have been sufficient to have alleged the ownership of the plaintiffs and an ouster by the defendant. So, if it had been trespass, only the possession of the plaintiffs and the intrusion of the defendant need have been stated.

The point that the respondents are not shown by the complaint to have been parties to or connected with the action of Gordon v. South Fork Canal Company is answered by the amendments filed to the complaint. If it was error to overrule the demurrer on this ground, the error was cured when the complaint was amended, if or are we at liberty to disregard these amendments.- They were filed by the permission of the Court before the argument was concluded, and there is nothing in the record to show that the counsel for defendant were not present and consenting. The minutes of the Clerk show, it is true, that leave was granted to file an amended complaint, while only amendments to the complaint were filed. This was undoubtedly an error of the Clerk in writing up his minutes, and furnishes no ground for wholly disregarding the amendments.

Reynolds v. Hosmer

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