Robinson v. Thornton

GAROUTTE, J. This is an appeal by defendant Thornton from a judgment and order denying a motion for a new trial in an action of ejectment. Plaintiff founds his title upon an attachment, judgment, and sale on execution thereunder, in an action entitled McCombe v. Benjamin S. Green and Hannah [742]Green, his wife, commenced April 1, 1872, the attachment being levied upon the realty the following day. Judgment was rendered for McCombe November 5, 1880, and the lands were sold under execution thereon December 10, 1881, to one Forbes, and certificate of sale issued to him upon the same day. Upon the fourth day of June, 1887, the ex-sheriff of San Mateo county, who made the sale, executed a deed of the premises to respondent, who held the certificate as an assignee thereof. This action was commenced June 8, 1887. Appellant, as appears by his evidence, relies upon three defenses to defeat respondent’s cause of action: (1) Title under a deed from said Green, dated August 17, 1872; (2) title by adverse possession, based upon an entry made under the aforesaid deed; and (3) outstanding title in a stranger.

1. A sheriff’s deed takes effect from the date of the levy of the attachment, if the levy is such as to create a lien; Porter v. Pico, 55 Cal. 165. Upon an examination of the evidence we are satisfied that a valid levy was made; and it follows that respondent’s title, under his deed of June 4, 1887, took effect as of the date of the attachment, to wit, April 2, 1872, and that appellant’s deed from Green, dated August 17, 1872, carried no title.

2. Appellant failed to acquire title, as against Robinson, by adverse possession. Robinson had no right of entry, and therefore no cause of action until he received the sheriff’s deed, and his complaint was filed within a short time subsequent to that event. The statute of limitations did not begin to run against him until his right of entry accrued. In Jefferson v. Wendt, 51 Cal. 573, this doctrine was declared; and, upon the ground that it had established a rule of property, it was followed in Leonard v. Flynn, 89 Cal. 536, 23 Am. St. Rep. 550, 26 Pac. 1097. The adjudications of the courts of Illinois declare the statute of limitations in this character of action to begin to run from the date when the purchaser at the execution sale is entitled to his deed, and not, as in this state, from the d.ate of the actual delivery thereof. This view was taken in Pratt v. Pratt, 96 U. S. 704, 24 L. Ed. 805, and seems to have sound reason in its support, but the rule is to the contrary in this state. It must be remembered that this appellant did not enter upon the land with bow and spear, defying the world. He entered under a deed from Green, the judg