Freeman v. Rahm

Myrick, J.: This action was brought to restrain the defendant as sheriff from proceeding to sell certain real estate on an execution against J. R. Campbell. One W. J. Campbell died seised of real estate, to an undivided "eighteenth of which said J. R. Campbell became entitled by succession. On the 11th of December, 1877, while the estate of W. J. Campbell was in process of administration, said J. R. Campbell sold to plaintiff all his interest in the estate of said W. J. Campbell, deceased, received the full amount of the purchase money therefor, and executed and delivered to plaintiff a full and irrevocable power of attorney to receive his distributive share of the estate, which power was acknowledged and recorded before October 13tli, 1879; no deed, however, was then executed. On the 13th of October, 1879, after due proceedings and notice, a decree of distribution of the estate was made by the Probate Court, by which decree an undivided one eighteenth of said estate was distributed to said J. R. Campbell. No mention of plaintiff, or the purchase by him, or of the power of attorney was made in the decree; but the Court in the decree recited that J. R. Campbell was entitled to an undivided one eighteenth, and distributed the same to him in the usual form. On or about the 31st day of March, 1880, one Perry commenced an action in the Superior Court against said J. R. Campbell, and on that day caused the interest of said J. R. Campbell in said premises to be attached. On the 6th day of April, 1880, said J. R. Campbell executed to plaintiff a deed [114]of all his interest in certain described premises, which deed contained the statement that “the interest hereby conveyed is the undivided one eighteenth of all the real estate above described, as per decree of the Probate Court of said Yolo County, made and entered in the settlement of the estate of W. J. Campbell, deceased, on the 13th day of October, 1879.” This deed was recorded April 24th, 1880. On the 12th day of April, 1880, in the said action, said Perry recovered a judgment against said J. R Campbell for four hundred and thirty-five dollars and sixty-five cents and costs, and on or about the same day caused an execution to be issued on said judgment and placed in the hands of the defendant, Sheriff of Yolo County. Under such execution the defendant was proceeding to sell, and this action was brought to restrain the sale. Neither plaintiff nor J. R. Campbell was ever in the actual possession of the premises. The Court below in this action rendered judgment for defendant.