Byers v. Neal

By the Court, Wallace, J.:

The fact that Neal was in the possession of the premises in controversy, as a preemptioner, when they were sold and conveyed by the Sheriff, under the judgment rendered against him, will not defeat the title of the purchaser at the Sheriff’s sale—Neal having already made his full payment to the Government as such preemptioner. Tallmadge, from whom Byers derives his title, was the grantee of the Sheriff, and, before he conveyed to Byers, brought an action against Neal, who was then in possession, for the recovery of the premises, in which action he alleged that he was the owner and entitled to the possession. Upon this allegation issue was taken by N eal, and j udgment rendered in favor of Tallmadge for the recovery of the premises, with damages and *214 costs, under which judgment Real was subsequently removed, and Tallmadge placed in possession by the Sheriff.

It will be seen that the title to the premises was thus brought directly in issue; and the judgment then rendered •must conclude Real in favor of Byers, as the privy of Tallmadge, upon that question.

The defenses which Real now attempts to interpose, though they might have defeated the former action, had they been established then, cannot avail him now.

Judgment affirmed.

[A rehearing having been afterwards granted on petition of defendant, the following opinion was rendered at this, the January Term, 1872:]

By the Court, Wallace, J.:

In November, 1863, Real was a settler upon certain public lands in San Joaquin County, being the southwest, fractional quarter of section thirty-two, township four north, range seven east, Mount Diablo base and meridian, and had made proof and payment therefor under the' preemption laws of the United States.

In 1865 Tallmadge brought an action against Real in the District Court at Stockton, in which he alleged himself to be the owner of these premises, and in that action Real appeared and pleaded the general issue—the pleadings not being verified—and upon the trial judgment was rendered in favor of Tallmadge, and he was placed in possession of the premises.

1. The effect of the recovery, under the pleadings in that action, is that Real is thereby estopped to deny that Tallmadge then had the better title to the premises, and this estoppel must preclude him in favor of Tallmadge, and also in favor of Byers, the subsequent vendee of Tallmadge, to *215 deny the validity of the title in their hands, until he shall have himself acquired a new title or estate in the premises.

The patent issued to him on the 20th day of May, 1869, by the authorities of the United States, does not constitute a new title in him in that sense. It is merely a formal assurance of the estate which he had already acquired by the proof and payment in Sovember, 1863.

2. Tallmadge was adjudged to be the owner, and he recovered in the action he brought against Seal, as having acquired the interest of the latter in the premises through a judgment, execution, levy, and a Sheriff’s deed of the premises made to himself on the 14th day of Sovember, 1864. Byers, now in possession of the premises as privy of Tallmadge, having commenced the present action against Seal under section two hundred and fifty-four of the Practice Act, to quiet his title, the latter alleges that this deed of the Sheriff to Tallmadge was void, as having been made without any authority in that officer. He avers in his answer, and offered—but was not permitted—to prove that, in point of fact, the Sheriff levied upon, advertised, sold, gave certificate of purchase, and on the 8th day of August, 1864, delivered a deed to Tallmadge, conveying to the latter the fractional north half of said section-thirty-two, and other premises—not being any part of the premises here in controversy—and that the Sheriff’s deed of Sovember 14th, 1864, was procured by Tallmadge from that officer several months after his authority had terminated by the delivery of the deed of the preceding August. In this connection he offered to show that he was ignorant of this fact at the trial of the action of Tallmadge against him in 1865.

These matters, showing, as they would, an utter want of authority in the officer to make or deliver the deed of Sovember fourteenth, rendered that deed a nullity—and, under the general issue pleaded in the Tallmadge suit, might have beeavailed of as a legal defense. This proposition is too clear *216 to require argument or illustration in its support. A party who relies upon a Sheriff’s deed as a basis of recovery in an action of ejectment must in the first instance make it appear that the officer was clothed with power to sell and convey the premises; this is necessary to the validity of the conveyance in point of law to transfer the title; the existence of the official authority in that respect is of the very substance of the plaintiff’s case in such an action, and being necessarily in controversy under the general issue pleaded, the defendant is undoubtedly at liberty to countervail the case of the plaintiff in that respect by showing that the officer never had such authority, or that it had in some way ceased before the delivery of the deed, and is not to be driven to an equitable defense for that purpose.

The judgment in the Tallmadge case concluded Heal upon every mere legal defense which he might have made there, and this defense among them. The applicability of this rule is not affected by the circumstance either that Heal was at the time really ignorant of the fact constituting the defense. How much or how little he knew upon the subject is immaterial in this connection, and would be so even if the defense had involved matters about which he would be less likely to know than the sale of his lands by the officers of the law. Had he subsequently discovered it in time, he might have moved for a new trial under the statute upon the ground of newly discovered evidence, or if discovered too late for that purpose, he might have made it the subject of a bill in equity to obtain a new trial; the motion in the one case, or the bill in the other, would have been aimed directly at the judgment itself, and, if maintained, would have vacated it, and along with it would have gotten rid of the incident estoppel, which, however, so long as the judgment itself remains undisturbed, must continue to be one of its inseparable consequences.

These are - the general views we entertained at the first *217 hearing of the cause, and the reargument has not changed them in any respect, though we have here given them at greater length than in the former opinion.

Judgment affirmed.

Mr. Chief Justice Sprague, and Mr. Justice Crockett, did not participate in the decision on rehearing.