Reilly v. Wright

Van Fleet, J. Appeal by defendants Wright and Johnson from a judgment quieting plaintiff’s title to a piece of mining ground in Nevada county, and from an order denying said defendants a new trial.

The complaint was in the usual form, alleging title and possession and right of possession in plaintiff, and that defendants made some claim adverse to the plaintiff in the premises which was without right. Appellants answered jointly, denying plaintiff’s title, and averring legal title in fee in Wright, and a mortgage [79]lien on the property by Johnson under a mortgage from Wright.

At the trial plaintiff deraigned title to the premises in dispute under a judgment and execution sale in an attachment suit theretofore brought by him against the defendant Wright in the superior court of Nevada county. After showing that the complaint was filed and attachment issued in that action October 16, 1889; that the attachment was levied on the property October 17, 1889; that judgment was entered therein in favor of Reilly for fifteen thousand dollars and costs May 1,1893; the issuance and levy of execution thereon against the property May 5, 1893; a sale of the property by the sheriff under the execution June 5, 1893, to one L. Gil-son; sheriff’s deed to the purchaser December 11,1893; and a deed from Gilson to plaintiff March 3,1894, plaintiff rested.

Thereupon appellants moved for a nonsuit upon the ground that the evidence did not show “whether at the time of the levy of the writ of attachment, or the execution admitted in evidence, the defendant Wright had any interest in the property.” The motion was denied, and the only material question in the case is the correctness of this ruling.

The contention of appellants, in keeping with the ground of their motion, is that plaintiff made no case because he offered no evidence “ showing or tending to show that Whitaker Wright had any interest in the property” either at the date of the attachment or of the levy of the execution, and, consequently, that there was nothing to show that plaintiff acquired any interest through his deed from Gilson. There is no merit in the contention. The plaintiff was claiming under an execution sale based upon a judgment against Wright as the judgment debtor, and in such case, in an action of this character, it was only necessary for plaintiff, in making out a prima facie right to recover as against Wright, to show the judgment of a court of competent jurisdiction, the execution thereon and sale thereunder,