Wakelee v. Goodrum

SAWYER, C. J.- The record in this case has been amended by stipulation, since the original opinion was filed, showing the facts to be, in some respects, different from the facts as they appeared in the original record, and as stated in the opinion of the court. Although there were some remarks based upon the erroneous statement, the amendment, in no respect, affects the point, upon which .the case was decided. It is proper, however, that the opinion should be so modified as to correspond with the record as corrected. When the petition for rehearing was denied at the close of the last term, we had no time to make the necessary modification, and for this reason we file the modified opinion now. The action is to recover possession of a lot situated on the corner of Twelfth (formerly Brown) and Howard streets, San Francisco. On the 7th of August, 1854, one William Sheer executed a deed purporting to convey to Biggs, Kibbe and Overton a lot one hundred sixty-one feet three inches wide, on the westerly end, and one hundred twenty-eight feet nine inches at the other on Howard street, and four hundred feet long on Twelfth street. Said lot embraced the premises in conti*oversy.

Sheer had no title except possession. On the 16th of January, 1855, said Biggs, Kibbe and Overton mortgaged the whole tract to defendant, Goodrum, to secure payment of the sum of four thousand dollars and interest at the rate of three per cent per month, mortgage duly recorded on the same day. On the first day of April, 1855, Biggs, Kibbe and Overton executed and delivered to Edward H. Whiting a deed, purporting to convey to him the easterly portion of said tract fronting one hundred twenty-eight feet nine inches on Howard street by two hundred sixty-eight feet on Brown, or Twelfth street, and one hundred forty-five feet in width at the westerly end, which deed was recorded May 4, 1855.

On the 25th of July, 1855, Goodrum commenced a suit to foreclose his said mortgage, filing a notice of lis pendens, [365]making tlie mortgagors parties, but said Whiting was not made a party. The mortgage was regularly foreclosed as to everybody except Whiting ■ the property «old under the judgment and purchased by Goodrum, who received the sheriff’s deed, purporting to convey the land, including the premises in question, on the twentieth day of May, 1856. Goodrum soon after entered into possession under said sheriff’s deed, and he has ever since been in the adverse possession, claiming under said conveyance. The land is within the limits of the so-called Yan Ness ordinance, and five years have not elapsed since the final confirmation of the city’s claim to title under the Mexican government.