Scheerer v. Goodwin
Before: Harrison
Synopsis
Ejectment—Writ of Restitution—Authority of gnERiFF.—Under a writ of restitution issued upon a judgment for the plaintiff in an action of ejectment, the sheriff is authorized to remove from the land the defendants and all persons found thereon, whose possession was derived under the defendants or either of them.
Id.—Presumption as to Possession Under Defendants—Burden of Proof—Possession Under 8tranger.—The burden of proof is upon all persons coming into possession subsequent to the commencement of the action of ejectment to show affirmatively that their possession is rightful, and under a title not determined in the action, and was not taken by collusion with the defendants: and, in the absence of a showing to the contrary, it will be presumed that they came in under the defendants. This presumption is not overthrown by showing that they came in under a stranger to the action, unless it is also shown that such stranger was in possession at or prior to the commencement of the action.
Id.—Injunction Against Execution oe Writ—Absence of Title— Collusive Entry.—An injunction cannot be maintained to enjoin the execution of the writ of restitution, in favor of a possessor claiming under a deed from a third person dated prior to the commencement of the action of ejectment, where it appears that such third person had no title to the premises, and merely had a conveyance from a defendant in ejectment after he had parted with his rights, and which was intended as a security for indebtedness; and that the entry of the plaintiff in the injunction suit, after the commencement of the action of ejectment, was by collusion with the defendant in that action, with intent to deprive the plaintiff therein of the fruits of his judgment.
Id.—Evidence—Possession of Grantor—Impeachment—Where the defendant in the ejectment suit testified for the plaintiff in the injunction suit that he had delivered the possession of the premises to the plaintiff’s grantor prior to the commencement of the ejectment suit, he may be impeached by proof that on the trial of the ejectment suit he testified that he himself had been in possession of the premises for about two years under a lease from the city, which lease described the premises in controversy, and was the only lease he had taken from the city.
Id—Advisory Verdict of Jury—Instructions not Subject to Exception.—In an equitable action for an injunction, the verdict of a jury is merely advisory; and though the court, in its findings of fact, adopts the conclusion of the jury, its instructions to the jury are not the subject of an exception.
HARRISON, J. The defendant Goodwin brought an action in ejectment against Joseph Scheerer and the city and county of San Francisco in 1892, in which judgment was rendered in "his favor December 30, 1892, from which an appeal was taken and the judgment affirmed in this court. (Goodwin v. Scheerer, 106 Cal. 690.) After the remittiiur had been filed in the superior court he caused a writ of restitution to be issued upon the judg[156]merit, and while the sheriff was in the execution of this writ the plaintiff herein brought the present action against him and the sheriff for an injunction against its execution, and for damages, upon the ground that he was in possession of the property and the owner thereof. Upon the trial of the cause, the court found that the plaintiff had never been the owner of the property, and that his possession thereof was taken by collusion with Joseph Seheerer, his father, for the purpose of evading the force of the aforesaid judgment. Judgment was accordingly rendered in favor of the defendants,, from which the present appeal is taken.
Under the judgment in the action of Goodwin v.Scheerer, supra, the sheriff was authorized to remove from the land the defendants in that action, and all persons found thereon whose possession was derived under the defendants therein, or either of them; and, in the absence of any showing to the contrary, it will be presumed that all persons coming into possession of the premises subsequent to the commencement of that action came in under the defendants therein. This presumption is not overthrown by showing that they came in under a stranger to the action, unless they also show that such stranger was in possession at or prior to the commencement of the action, or was entitled to the possession by virtue of a title adverse to that of the plaintiff in the action, which the court would be authorized to protect against the enforcement of the judgment. Upon the issue of their right to remain in possession the burden is upon them to show affirmatively that their possession is rightful and under a title that has not been determined in the action, and that such possession was not taken by collusion with the defendants in the judgment. (Long v. Neville, 29 Cal. 131; Leese v. Clark, 29 Cal. 664; Wetherbee v. Dunn, 36 Cal. 147; 95 Am. Dec. 166.)
The findings of the court that the plaintiff never had any interest in the land, and that his entry upon the land was by collusion with his father for the purpose of evading the judgment against his father, necessitated a judgment in favor of the defendants. We are of the opinion, moreover, that the evidence before the court authorized it to make these findings.
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