Enos v. Cook

McKinstry, J. —This is an action of ejectment to recover the possession of certain lands and premises, ten thousand dollars damages for the use and occupation, and damages caused by the loss of the value of the rents, issues, and profits, at the rate of tAvo hundred dollars per month from the 9th day of November, A. D. 1880. The court below gave judgment for defendants, from Avhich plaintiff appealed.

[177]The facts of the case, as disclosed by the record, are as follows: On the 4th day of September, 1876, C. H. Johnson was the owner of the premises described in the complaint, and on that day leased them to one Silva for five years from and after the 1st day of October, 1876, which lease was on the same day recorded. Silva entered under the lease, and on the 13th day of December, 1876, assigned to plaintiff and one Menas. Plaintiff afterwards, and prior to the 9th day of November, 1880, became sole owner of the lease. On the 4th day of May, 1878, C. H. Johnson mortgaged the demanded premises to the respondent, San Luis Obispo Bank, which mortgage was the same day duly recorded. The bank brought suit to foreclose the mortgage, and on the 19th day of May, 1879, a decree foreclosing said mortgage and ordering the sale of the mortgaged premises was entered. To this suit plaintiff was not made a party. Upon this decree an order of sale was issued February 20, 1880, and the premises were sold at sheriff’s sale and bid in by the bank, and on the 27th day of September, 1880, the bank received the sheriff’s deed for the same, which was duly executed and recorded.

On the 5th day of October, 1880, an affidavit for a writ of assistance made by the president of the respondent bank, and notice of motion for the writ, returnable October 12,1880, were filed in the lower court, and copies of the notice and affidavit were served the same day by the sheriff on C. A. Johnson, Merritt Walker, and plaintiff.

On November 6,1880, the said Johnson, Walker, and plaintiff failing to appear as required by said notice, the court ordered the writ of assistance to issue. The writ was issued and served, and the respondent bank put in possession of the premises the ,9th day of November, 1880.

At the trial the plaintiff proved the lease from Johnson to Silva, the entry of the latter thereunder, the assignments of the lease, the continued occupation by Silva and his assigns— ’ including plaintiff—and the ouster and withholding by defendant. After proof by defendants of the mortgage foreclosure, and the proceedings on application for writ of assistance, the court below struck out, and excluded from the consideration of the jury, all of plaintiff’s evidence; and thereupon the court, on