Brady v. Burke

De Haven, J. — This is an action under section 738 of the Code of Civil Procedure to determine adverse claims to two lots in the city of San Francisco. All of the parties claim under a common source of title.

The plaintiff, who is the respondent here, claims title to both lots upon sales made under judgments foreclosing certain street assessments, recorded November 14, 1870, and deeds executed by the sheriff on October 3, 1885, in pursuance of such sales.

The defendants claim an interest in the lots in controversy, based upon various street assessments against said lots, made and recorded subsequently to the commencement of the foreclosure suits under which plaintiff claims, and prior to the rendition of final judgment therein. Defendant Diggins claims the legal title to lot 5, by virtue of a sheriff's deed, under a judgment foreclosing one of these assessments, and the defendant Wood the legal title to lot 6, by virtue of two deeds, based upon judgments foreclosing two of said assessments. These deeds were executed during the pendency of the foreclosure proceedings under which plaintiff claims. These defendants also claim to hold the legal title in trust for certain of their co-defendants, to the extent of their interest, under street-assessment liens.

[4]It is argued here by the appellants that the plaintiff acquired no title to lot 6 by the execution sale under which he claims; that the court erred in allowing plaintiff to show that the assessments resulting in the judgments, upon which the deeds of defendants depend, were invalid; and that, in any event, the defendants are entitled to have the lots sold, and the proceeds applied to the satisfaction of the several liens of all the parties, in the order of their priority.

1. The ground upon which appellants attack the deed under which plaintiff claims title to lot 6 is this: Findings and an order for judgment were filed in plaintiff’s action against Louisa Page, the owner of this lot, on March 21, 1878, but no judgment was ever entered until January 7, 1882. On March 20, 1878, plaintiff’s attorney in said action served upon defendant therein notice of the rendition of judgment, and in November, 1878, said defendant appealed from said judgment to this court, and the judgment was affirmed. There is among the papers in' said action a formal decree entitled in that action, dated March 19, 1878, and signed by R. F. Morrison, then judge of the district court in which the action was pending. This formal decree was never entered as the judgment therein, and on January 7, 1882, in the same action, a judgment and decree signed by O. P. Evans, a judge of the superior court of San Francisco, was entered. On appeal to this court, from such judgment, taken by the defendant therein, it was affirmed. Upon the return of the remittitur, execution was issued upon this judgment, and it is upon the sale thereunder that plaintiff claims title to lot 6.