McCormick v. Sutton

Paterson, J. Ejectment. The court below decided that the right of possession of the land in controversy was determined against plaintiff and in favor of defendant, by a judgment entered November 19,1884. Said judgment was entered in an action commenced in the superior court of Tuolumne County, February 2,1884, in which Sutton and Gerlach were plaintiffs, and Richards and Pereira were defendants.

If this decision is based upon facts supported by the evidence, it is unnecessary to consider any other question discussed in the briefs.

Without stopping to discuss the question whether the patent of the United States to Hughes, president of the board of trustees of the city of Sonora, the deed of said board to Dan McCormick, and the decree of the probate court distributing the land in controversy to Mrs. McCormick, were sufficient to vest in her the legal title to the same, we shall assume that the legal title did pass to her by those conveyances and the decree.

[233]On January 1,1883, defendant Sutton and one Gerlach located a mining claim which included the land in controversy. Richards and Pereira made a location on eight hundred feet of the vein included in the Sutton and Gerlach claim, January 1, 1884. On February 2, 1884, Sutton and Gerlach commenced the action referred to above against Richards and Pereira to recover possession of the lands included in the location of the latter, and which resulted in the judgment of November 19, 1884. While that action was pending, to wit, August 20, 1884, Margaret McCormick, plaintiff herein, conveyed all her right, title, and interest in and to the land to Richards and Pereira. The trial in said action was had on August 28, 1884. The judgment therein remains in full force and effect. Gerlach conveyed his interest to Sutton on January 10, 1885. Richards and Pereira re-conveyed to plaintiff January 1, 1886. This action was commenced March 21, 1887.

Appellant contends that plaintiff never conveyed to Richards and Pereira any part of the lands in controversy,—any part of the surface thereof, but simply the right to mine beneath the surface; that she had no notice of the pendency of the suit of Sutton v. Richards; that plaintiff is not the successor in interest of Richards and Pereira as to the right of possession, and having had no notice, actual or constructive, of the pendency of said action, she is not concluded by the judgment therein to any extent, because the deed from Richards and Pereira reconveying to her conveyed only what she had granted to them, viz., the right to mine beneath the surface.