Russell v. Harris

By the Court, Rhodes, J.:

On the first trial of this cause, the District Court found that no execution had issued upon the judgment in the case of Morgan v. Thrift, and found, as conclusions of law— though they might well have been stated as facts—that the plaintiff had not shown any constructive possession in himself, of the premises. The report of the case on appeal to this Court ( 38 Cal. 426 ) is very meager, it consisting simply of the opinion of the Court, without stating the condition of *493 the record, or any fact therein contained. On that appeal, this Court decided, that under the circumstances of the case, the evidence was insufficient to show that an execution, under which the Sheriff’s sale of the premises purported to have been made, had been duly issued upon the judgment of Morgan v. Thrift. And the Court also decided that the Court below erred in its conclusions that the facts shown by the evidence and found, did not show a prior possession in plaintiff*; and held, on the authority of Hicks v. Coleman, 25 Cal. 132 , that the plaintiff’s entry upon and possession of, apart of the land under the Sheriff’s deed, extended his possession to the bounds of the entire tract described in the deed.

On the second trial it was admitted that the execution above mentioned had been issued and was lost; and the Court found that the plaintiff* entered, under the Sheriff’s deed, into possession of the tract of land described in the deed—that tract including the premises in suit—and that he remained in possession, without any adverse claimant of said land, until the Spring of 1866, when the defendant entered. Upon these issues the evidence is conflicting, and the finding, therefore, will not be disturbed.

The main point discussed by the defendant is, that the plaintiff did not enter under the Sheriff’s deed, believing, in good faith, that by virtue of the deed, he had acquired an estate in the land, which entitled him to the possession of the whole tract described in the deed. The argument is, that as the deed of Sutter to Robinson and others, was executed and duly recorded before the execution of the deed of Sutter to Thrift and others, under which the plaintiff claims, the plaintiff had constructive notice of the deed of Sutter to Robinson, and therefore could not have believed, in good faith, that the Sheriff’s deed conveyed to him any estate in the land. Whether there is any merit in the argument, that a purchaser is so affected by constructive notice of *494 a prior deed, that he cannot say that he entered under his deed, believing, in good faith, that it transferred to him the right to the possession of the whole tract—whether such ca,se is within the doctrine of Wolfskill v. Malajowich, 39 Cal. 276 , it is unnecessary in this case to inquire; for the defendant is precluded by the decision on the former appeal from raising the point. That decision became the law of the case, and it became the duty of "the Court below to observe it, if the evidence relating to the issue was substantially the same at the second trial as at the first. There is no material difference in the evidence in that respect, and we cannot hold that the Court erred in deciding, in accordance with the former decision of this Court, that the plaintiff' had acquired the constructive possession of the whole tract described in his deed.

Judgment and order affirmed.

Mr. Chief Justice Wallace did not express an opinion.