Ross v. Parvin, Cohen & Hall

SHAFTER, J. The appellants, Cohen and Hall are strangers to the mortgage given by Parvin to the respondent. The lands claimed by them under certificates of purchase from the United States were not swamp and overflowed, but dry land fit for cultivation. On that point there was no conflict in the testimony. The certificates were produced and received in evidence, and the purchases were also proved, in effect, by Kerchival, the agent and witness of the plaintiff, and by the testimony of Cohen. From this it follows that the decree, in so far as it restrains the appellants from cutting wood end timber on their respective claims, is erroneous. Parvin had no title, so far as the record shows, that can be considered for a moment as paramount to theirs.

Further: the land covered by Cohen’s certificate of purchase has been in his possession since 1852, under claim of right, and therefore his title can neither be determined nor investigated in this action: San Francisco v. Lawton, 18 Cal. 465, 79 Am. Dec. 187.

As to the decree in its relations to the cord-wood, it appears from the testimony of Parvin and Arnold that about forty cords were cut upon Cohen’s claim, and there is no testimony [287]in the record to the contrary. The rights of the plaintiff under his mortgage do not, therefore, extend to this portion of the seventy cords ordered for sale into the hands of the receiver.

But further: conceding that Cohen had no interest in the lands on which the forty cords were cut, and that the cutting was by collusion with Parvin, still as the cutting was done, as appears by the uncontradicted testimony of Parvin, before the restraining order was made, and particularly as it does not appear that either Cohen or Parvin is insolvent, the wood was not liable to sequestration: Buekout v. Swift, 27 Cal. 433, 87 Am. Dec. 90.

The judgment, in so far as it acts upon the appellants Cohen and Hall, is reversed and a new trial ordered.

We concur: Sanderson, J.: Sawyer, J.; Currey, C. J.; Rhodes, J.