Brusie v. Gates

Vanclief, C. — Action to quiet title to land. The complaint is in the usual form, praying that defendant be required to set forth the nature of his adverse claim, etc.

Defendant’s answer admits that he claims the land adversely to the plaintiff, and avers “ that on or about the twentieth day of November, 1879, for a good, valúa[266]ble consideration, a grant, bargain, and sale deed of the whole of said described premises was duly executed and delivered to him by one Miner Walden, in whom the legal title to the whole of said described premises was then vested, and who was then in the open and notorious possession of said described premises, and the whole thereof, as the legal and lawful owner thereof, which said deed was sufficient in form and recitals to vest, and it did vest, the title in fee-simple of said premises in this defendant ”; that said deed was duly recorded on the sixth day of January, 1880, and under it defendant entered into possession on November 20, 1879, and has ever since remained in exclusive possession, claiming absolute ownership of the premises.

At the trial, plaintiff claimed title from the same Miner Walden by a sheriff’s sale made by virtue of a writ of execution on a money judgment in a justice’s court, in his favor, against Walden, rendered October 12, 1878. The execution on which the premises were sold was issped October 1, 1880. The property was sold October 30, 1880, and the sheriff’s deed to plaintiff was executed May 10, 1881. For the purpose of proving that his title acquired by this deed antedated the alleged deed from Walden to defendant of November 20,1879, the plaintiff proved the regular issuance of a writ of attachment from the justice’s court on October 2,1878; and to prove that this writ had been levied on the property in question, introduced the constable’s return indorsed thereon, certifying that the constable had received the writ on the second day of October, 1878, “ and served the same on the same day by attaching the following described real estate, describing the land in question, and filing a notice thereof with the county recorder of said county, and delivering a copy of said attachment to B. B. Garner, an occupant of said real estate.”

Plaintiff then proved that a copy of the writ, with the following notice attached thereto, had been filed in the recorder’s office October 2, 1878: “Notice is hereby given that by virtue of the annexed writ of attachment [267]