Rowe v. Blake

Van Fleet, J. Appeal from the judgment upon the judgment-roll, the sole question being whether the findings support the judgment.

The action is based upon a judgment obtained by one Latham against these defendants in another suit foreclosing a lien upon certain lands, and. directing a sale thereof in satisfaction of the lien—the object of the present action by the plaintiff, claiming as assignee of Latham, being to enforce said judgment by procuring a sale of the property therein directed to be sold. It was held on a former appeal herein that the action would lie, and that the complaint stated a cause of action. (Rowe v. Blake, 99 Cal. 167; 37 Am. St. Rep. 45.)

The complaint alleges that the judgment sued upon was recovered in 1879, and that the assignment by Latham to plaintiff was made in 1884. These allegations are not denied, but the defense relied upon by the defed ants was that the judgment had, before such assignment and the bringing of the present action, been put in execution and satisfied by a sale of the property.

Upon this issue the court found these facts: “ In the [642]year 1882 one George W. Osborn claimed to have become the owner of said decree, and to have lawfully succeeded to the interests of said Latham therein, and, on the twenty-fifth day of May, 1882, at the instance of said Osborn, the superior court here made and entered an order directing that an order of sale upon and in execution of the said decree of Latham v. Blake, and others, be issued by the clerk here under the seal of the court, and be delivered to the sheriff of this city and county, commanding him to sell the said lands and premises in the said decree described, pursuant to the terms of said decree and in execution and enforcement thereof; said order as thus made and entered upon the minutes here has not been appealed from, vacated, or in anywise set aside or modified; and, pursuant thereto, an order of sale in due form was, on the twenty-sixth day of May, 1882, issued by the clerk here, attested by Mm, and under the seal of the court, and delivered to the sheriff of the city and county of San Francisco on the next day thereafter, by the terms of which said order said sheriff was enjoined and commanded, among other things, to proceed to notice for sale, and thereupon to sell at public outcry all the said premises in the said decree described, and to apply the proceeds of such sale when made as in said decree and order further directed; and that he make report of his acts and doings thereunder, within a time therein in said order named and specified; accordingly, on the twenty-second day of June, 1882, after notice duly given and published, the said sheriff, in virtue of the said decree and the said order of sale in his hands, did expose to sale at public outcry, and did sell to the highest bidder at said sale, the said lands and premises and the whole thereof, and did receive therefor from said bidder, who was the purchaser, the sum of sixteen hundred and thirty dollars; a certificate of sale in the usual form and containing the customary recitals was thereupon delivered by the sheriff to the said purchaser; no redemption from said sale has been made, and, in due time thereafter, a deed