Harney v. Ryan , 1 Cal. Dist. Ct. 253 ( 1857 )

Botts, J.

This is an action of ejectment. The defendants went into possession of the premises in controversy, render a purchase at a sale made by virtue of an execution issued out of the superior court e£ the city of San Francisco, in a suit in which Wethered, the piainSZ’e grantor, was defendant. It is admitted that the sal® was a nullity, and that Wethered had no title to the property. Can the defendant, who paid the purchase money, set up the outstanding filie, by way of defense, to this action ?

In my opinion, this case turns upon a point that was not distinctly settled, Between counsel, on the trial, the proofs, consisting only of verbal admissions of counsel, a very loose and objectionable mode of proceeding, I allude to the fact of prior possession of Wethered. The sale Is a nullity; there is no privity between the defendants and th® plaintiff’s grantor; they are entire strangers; the only supposed link is repudiated by both ¡ consequently, there can be no question of estoppel, A stranger, without either paper title, or prior possession, cannot eject, the defendant. His possession protects him. On the other hand, the defendant, in ejectment, cannot set up an outstanding title against a plaintiff, who proves a prior possessien. Winans vs. Christy, 4 Cal. Rep. 70.

Since, then, the plaintiff hag failed to establish, either a paper title or prior possession, I shall render judgment for defendant, with leave to the plaintiff to open the judgment, if he desires to establish the fact of prior possession in Ms grantor.