Vigoureux v. Murphy

Department No. 2, Thornton, P. J.: The plaintiff (appellant here) brought this action to recover the possession of land in the City and County of San Francisco, which he described as one parcel by metes and bounds, concluding with these words: “ Being lots numbers 463, 464, 465, 466, as laid down on Gift Map No. 2, on file in the Recorder’s office of the City and County of San Francisco, State of California.” The complaint was in the usual form adopted in this State for the recovery of possession of real property.

The defendant answered, denying all the material allegations of the complaint except possession by him; and for a further answer and cross-complaint, averred that he was the owner and in possession of the lots sued for, and has been the owner, and in possession of them, since the 14th day of April, 1875; that the property was on said day last named divided into four lots, and then known as lots by the numbers above stated, and so designated on a map, entitled “ Gift Map No. 2,” recorded in the Recorder’s office of the City and County of San Francisco ; that on two of these lots there was on said day, and ever since has been and now. is, a large frame house of the value of $800, the same being ,the homestead of defendant and his family ; that on or about the 21st day of March, 1873, A. Scholle caused an execution to be issued on a judgment recovered by said Scholle against defendant about the 8th of March, 1873, in the Justices’ Court of said city and county, for the sum of $68.40 and $14.25 costs of suit; that the Sheriff on [349]the 18th day of April, 1873, sold these lots under said execution in one entire mass to Scholle for the sum of $100.35, and at the same time executed to Scholle a certificate of sale ; that the Sheriff and Scholle, at the time of sale, knew of the division into four separate lots. Defendant further knew that at the time of sale these lots were each of the value of $150 gold coin, and the entire property was then of the value of $1,500; that the Sheriff sold all of them for $100.35—a sum much less than the value of one of the lots, as the Sheriff and Scholle then knew ; that afterward, about the 20th of December, 1873. Scholle sold and assigned his certificate of sale to the plaintiff, who knew that the property was divided and sold en masse as above stated; and that about the 10th day of March, 1874, the Sheriff executed a deed of the lots to the plaintiff; that on the 20th of May, 1870, defendant offered in writing to pay to the plaintiff the amount of said judgment and the costs due on the judgment and sale, and interest on the same, amounting to $132.06, in United States gold coin, which offer plaintiff refused ; that defendant is now, and has been since the offer was made, ready and willing to pay said sum to plaintiff, and brings it into Court and tenders it to plaintiff. The prayer of the cross-complaint is, that the sale may be set aside, and plaintiff be compelled to convey the lots to defendant, and for such other relief as to the Court may seem meet, and for costs.