Tyrrell v. Baldwin

Paterson, J. Action to quiet title.

The appeal is from the judgment, the only question being as to the sufficiency of the findings to support the judgment of the court below in favor of the plaintiff.

Two years ago the respondent moved to dismiss the appeal herein, and the motion was denied. (72 Cal. 192.) At the hearing of the appeal on its merits the motion was renewed. It is based on the same facts, and as leave [472]was not granted in the former order to renew the motion, there is nothing to commend it to the discretion of the court. It is therefore denied. (Ford v. Doyle, 44 Cal. 637.)

As to the merits: On August 13, 1867, M. Tyrrell and his wife, by a declaration duly executed and recorded, selected the land in controversy as a homestead from their community property. On August 22, 1874, Mrs. Tyrrell died. She left surviving her a daughter, then aged seven years, who has ever since been dependent upon her father for support, and has lived with him. In April, 1877, one Porter commenced an action against M. Tyrrell, and in March, 1880, he recovered a judgment against him for the possession of the property sued for, and if a return could not be had, then for the recovery of $250, the value thereof, together with costs, taxed at $150. The property sued for was a house that had stood on the premises in controversy, but had been removed therefrom prior to the commencement of the action. In October, 1877, Porter made, executed, and delivered to Baldwin a deed of the land in controversy, and thereupon Baldwin entered into possession of the land, and has ever since held the same. On February 8, 1883, Porter procured an execution upon his judgment against Tyrrell, which was levied upon all the interest Tyrrell had in the premises on March 24, 1880. Under this execution and levy the sheriff duly sold the land to defendant Baldwin on April 11,1883, for $540. Defendant paid the money over to the sheriff, and no redemption having been made, a deed in due form passed from the sheriff to defendant on November 21, 1883.

Since the trial of the action M. Tyrrell died, and his daughter—■ administratrix — has been substituted as plaintiff.

The main question before us is, whether the sale under the execution issued in Porter v. Tyrrell was valid or void. Plaintiff claims that it was void; that the land [473]