Irving v. Cunningham

Foote, C. This is an appeal from an order restraining the sheriff of Alameda County from executing a writ of possession for certain lands, so as to remove therefrom John Long, B. Van Wyman, and Lewis Hellans.

It appears that on the twenty-sixth day of June, 1883, Henry P. Irving obtained a judgment in ejectment for the lands occupied by the moving parties herein, but it is claimed that they were not parties to the action in which the judgment was obtained, and did not claim title thereto under the defendants therein, either in good faith or collusively; that the possession of the moving parties was adverse to the whole world.

[53]The claim of title set up by them is based upon a tax deed to one J. P. Dameron.

The evidence is clear that those in whose favor the restraining order was made were not parties to the action in which the judgment in ejectment was obtained; and that they did not enter under the defendants, either in good faith or collusively.

The court was warranted, we think, in holding that their possession was adverse to that of all the parties to the action. These facts existing, it made no difference whether the moving parties entered before or after suit brought, or whether the adverse title which they claimed to have was worthless or good. They could not be removed from the possession of premises under a writ of ejectment in a suit to which they were in no manner privy, and where their title could not have been determined.

To grant the appellant’s contention would be to say that one who enters after suit brought under claim of title must not only show that he is not in privity with the defendant, who has lost in an action of ejectment, is not in collusion with him, and is not a party to the suit; but he must further show that the possession of which it is sought to deprive him is under a title paramount to that of the plaintiff in the action where recovery is had, thus trying a second action of ejectment between the same plaintiff and another defendant, under á motion to restrain the execution of a writ of habere facias issuing under the judgment obtained in the first action.

The lis pendens filed could not affect the rights of the moving parties here; they were not compelled for that cause to become parties to an action where they were not sued. Not being parties, they could not be affected, except to the extent that they might be unable to acquire title to the property in dispute through the defendants, which they were attempting to do.