Williams v. Cooper

HAYNES, C. Ejectment to recover possession of certain lots in the town of Williams, in the county of Colusa. Said action was tried by 'the court without a jury, the plaintiff had judgment upon the findings, and the defendant appeals therefrom and from an order denying a new trial.

The complaint is in the usual form and not verified. The answer denied each and every allegation of the complaint, and for a second defense alleged, in substance, that in 1890 William Miller, being then the owner of the demanded premises, mortgaged them to the plaintiff; that said premises were afterward sold by the tax collector of Central irrigation district for an assessment which became delinquent December 31, 1889; that defendant Cooper became the purchaser at said sale, and received the tax collector’s deed therefor on March 26, 1891; that on May 25, 1891, Cooper, claiming title under said tax deed, and relying solely thereon, brought an action of ejectment against said Miller and against his tenants, Long, Kidd, and Peters; that Williams, the plaintiff here, for the protection of his interest as mortgagee, openly took substantial control of the defense of said action with the consent of the defendants therein, employed counsel, and conducted the defense in that court and in the supreme court, and paid the costs and expenses of said defense; that on August 6, 1892, this defendant (Cooper) obtained judgment in the superior court in said action that he had a good and valid title under said tax deed, and was entitled to the possession of said premises; that said judgment was affirmed by the supreme court on June 6, 1896, and this defendant was put in possession under a writ issued upon said judgment; that thereafter said Williams commenced an action against said Miller to foreclose his said mortgage, obtained a decree, that said lots were sold by the sheriff thereunder, and, after obtaining the sheriff’s deed, commenced this action; that said deed constitutes plaintiff’s only claim of title, and defendant pleads his said judgment in bar of this action.

The findings of the court were in accordance with the allegations of said second defense, except as to the participation and control of Williams in the defense of the said action of Cooper v. Miller; and in relation thereto found, in substance, that Williams’ only participation or control of the defense was as agent for said Miller.

[668]Upon the trial, Cooper did not offer or introduce his said tax deed in evidence, hut put in evidence the judgment-roll in his said action of ejectment against Miller and certain evidence tending to sustain his allegation that Williams conducted the defense of that action, and had such interest in and relation thereto as that he became bound and concluded by said judgment.