Gregory v. Haynes

Citations

• 13 Cal. 591
• 1859 Cal. LEXIS 209

Syllabus

<p>A decbee reciting that “ this action having been continued, in consequence of the death of the plaintiff, by his executor, Samuel Webb, and the jury having found a verdict for the plaintiff, it is now ordered,” etc. clearly shows the suggestion of the death of the original plaintiff, and a continuance of the cause or a revival of it, in the name of the executor. At all events, any irregularity in this respect cannot he attacked collaterally.</p> <p>A purchaser of land subsequent to a suit brought against his vendors to quiet title, and to a notice of Us pendens filed in the County Recorder’s office, is a mere volunteer, who takes subject to any decree in the suit.</p> <p>This decree is conclusive as to plaintiff, who was the executor of deceased, with general power under the will to sell the real estate of his testator, and conclusive as to the defendants and their vendee, the purchaser here.</p> <p>A defendant in ejectment, entering under a deed executed by order of a Court of competent jurisdiction, enters under color of title. He is not anaked trespasser, and may set up an outstanding title in a third person.</p> <p>Mere prior possession of land, cannot prevail against the present possession of defendant, taken under claim of title derived, regularly or not, from the rightful owner.</p> <p>Defendant had been let into possession under judgment in ejectment by him against C. This judgment is afterwards reversed. C sells to G. Held, that defendant’s possession was sufficient, until restored by due course of law, to break the force of the claim of G, based upon the prior possession of C.</p> <p>If an executor, claiming power under a will to sell, and in possession under judgment against C as above, execute a deed to defendant, who takes possession thereunder, then defendant can set up outstanding title in the executor or his testator, as against G, even though he could not, from defects in his deed, or want of power in the executor, assert title against the estate