Reanda v. Fulton

CROCKETT, J. — It appears from the findings that an action was commenced in the name of the ‘ ‘ Mayor and Common Council of the City of San Jose,” but on behalf of the municipal corporation of the “City of San Jose,” against the defendant Fulton and certain real estate of which he was the owner, to recover delinquent taxes due to the corporation. The complaint in that action described the real estate as consisting of two separate town lots, which had been separately assessed, and’ the improvements on. one of which were also assessed separately. There was likewise a small sum due from Fulton for a tax on personal property. The prayer was for a personal judgment against Fulton and for a several judgment against each parcel of the real estate and the improvements for the tax assessed upon each severally. Fulton and the real estate were duly served with process but made default, and a judgment was entered for the plaintiff against the personal defendant and the real estate for all taxes in solido and the costs. Under the order of sale which was issued, the sheriff offered the lots separately, but no bidder offering to take the whole of either lot for the taxes and costs, the two lots (which abutted on each other) were sold together to one Kennedy, who in due time obtained the sheriff’s deed and subsequently conveyed to the plaintiff. It further appears that the real purchaser at the sale was D. M. Delmas, an attorney at law, for whom Kennedy held the legal title in trust.

During all this time Fulton was in the open, exclusive and adverse possession of the lots, claiming title thereto, and after Kennedy obtained the sheriff’s deed, and whilst Fulton was so in possession, a verbal agreement was entered into between Delmas and Fulton, whereby the former agreed, in consideration of the sum of eighty-five dollars, to sell to the latter all the interest acquired under the sheriff’s deed, and to procure [846]for him a conveyance of the interest then held by Kennedy in trust for Delmas.

The eighty-five dollars was paid and was accepted by Del-mas in full satisfaction of the interest agreed to be conveyed, but instead of procuring the conveyance to Fulton, he caused Kennedy to convey the title to the plaintiff in this action, which is ejectment to recover the possession. It further appears that at the time of the sheriff’s sale, and also at the time of the verbal agreement between Delmas and Fulton, the premises in controversy were, and yet are, of the value of three thousand dollars or more. A judgment was entered for the plaintiff, from which the defendant appeals.