People's Savings Bank v. Jones
Before: Belcher
Synopsis
Appeal from a judgment of the Superior Court of Fresno County, and from an order denying a new trial.' J. R. Webb, Judge.
The main facts are stated in the opinion. The instructions numbered 9, 10 and 11, alluded to in the opinion as having been asked by the defendants and refused by the court, were as follows: “ 9. The jury are instructed: If you find from the evidence that the-frame house was on the land bought by the plaintiff at. the sale made under the decree of foreclosure, made on the twenty-fourth day of April, 1894, and if you further find from the evidence that said house was removed from the land within six months from the time of such sale, and that this action was commenced before the period of six months from the date of said sale had expired, then you are instructed that at the commencement of this action plaintiff did not have the right to-the immediate and exclusive possession of said frame-house. 10. The jury are instructed: T. E. Jones and Annie E. Jones were entitled to the possession of all of the land sold under the decree of foreclosure, and to the. possession of all of the fixtures and buildings on said-land, for the full term of six months from the day of said sale, and the plaintiff had no right to the possession of said land, or of any of the buildings and fixtures thereon, until after the full period of six months from the date of the sale. 11. The jury are instructed: That plaintiff’s title and right to the possession of the frame house sued for is founded only upon a purchase thereof made at the sale held under the decree of foreclosure introduced in evidence; and if you further find that this action was commenced before six months had expired from the day of said sale, then you are instructed that this action was commenced too soon.”
Belcher, C. The defendant T. E. Jones was the owner of two lots of land in the city of Fresno, on which he and his wife, the defendant Annie Jones, executed to the plaintiff two mortgages, one on the second day of March, 1892, and the other on the sixth day of May, 1892, to secure payment of certain promissory notes made by them. In April and May, 1893, the defendants caused a frame dwelling-house to be erected on said lots, which they thereafter occupied as their place of residence. The house rested on mudsills, which were placed on top of the ground. Afterward plaintiff commenced an action to foreclose its mortgages, and on April 24, 1894, a decree of foreclosure was duly and regularly made and entered, directing the sale of the said lots. By the decree a co mmissioner was appointed to make the sale, and thereafter, on May 22, 1894, he duly and regularly sold to the plaintiff all the property mentioned in the decree, and on the same day executed and delivered to plaintiff a certificate of such sale. The property sold was not redeemed, and on November 24, 1894, the commissioner executed and delivered to plaintiff a deed for all the property so sold.
On November 17, 1894, the defendants, without the knowledge of plaintiff, caused the house, erected by them as aforesaid and which they were then occupying with their family, to be removed about forty feet to and upon [425]an adjoining lot. Two days later, on November 19th, plaintiff commenced this action in claim and delivery to recover possession of the said house, or its value, alleged to be five hundred dollars, together with damages for its detention.
The complaint alleges that on the seventeentli day of November, 1894, the plaintiff was and still is the owner and entitled to the immediate possession of all the following goods and chattels, to wit: one frame dwelling-house, etc.; that, on the day named, defendants, without plaintiff’s consent and wrongfully, took said goods and chattels from the possession of plaintiff, and still unlawfully withhold and detain the same, to plaintiff’s damage, etc. The balance of the complaint is in the usual form.
The answer denies all the material averments of the complaint, and sets up that on the day the complaint was filed the plaintiff upon affidavit and undertaking required the sheriff of the county to take said house from the possession of defendants, and that he did take the same from the possession of the defendant Annie Jones, who is the owner and entitled to the possession thereof, to her damage, etc. Wherefore, judgment is asked for a return of the said property, or for its value, with damages.
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