Pacific Coast Law Journal.

VOL. 2.

SEPTEMBER 28, 1878.

No. 5.

Current Topics.

SILVER VS. MULLAN, an unwritten opinion by our Supreme Court at the April Term, 1878 (a statement of the facts was made in Vol. 1, P. C. L. J., page 364), proves to be very important. A subscriber, who was present when the decision was announced from the bench, says: "The application of the defendant, Mullan, was first in time, and the only point argued was whether or not the defendant's application was valid. The defendant's application was filed after the passage, in 1870, of an act amendatory of the statute of 1868 providing for the disposal of the lands of the State. It did not comply with Section 53 of the Act of 1868, with respect to the affidavit. The plaintiff's application was filed after the Code went into effect, and was in every respect in accordance with the provisions of the Code. It was argued and decided that the 53d Section of the Act of 1870 was in force when defendant filed his application, and that that section by reason of its mutilation failed to prescribe any intelligible mode of proceeding to procure the title to lieu lands from the State, and consequently that defendant's application was without lawful authority and void.

"The court virtually decided that from the taking effect of the amendatory Act of 1870 until the Code took effect in 1873 (January 1st), there was no law authorizing the purchase of lieu lands from the State, and that all applications made during that time were void."

IN American Express Co. vs. Wells, it was recently held by the Supreme Court of Wisconsin, that if the agent of an ex

press company receives goods consigned to him as such, for delivery to the purchasers, and having, at the same time, in his hands for collection, a bill for the price of such goods, delivers them to the purchaser, the company becomes liable to the consignor, whether the agent in fact collects the bill

or not.

But when goods are not delivered to an express company, but are sent by railway to the place of their destination, consigned to the purchaser, in care of the express company's agent at that place, and never came into his hands, but were delivered by the railway company directly to the purchaser, without the fault of the express company or its agent, and a bill sent to such agent for collection, not being paid is promptly returned by the agent, the express company is not liable to the consignor.

Supreme Court of California.

JULY TERM.

[No. 5,963.]

[Filed September 2, 1878.]

ODD FELLOWS' SAVINGS AND COMMERCIAL BANK, RESPONDENT, VS. HARRIGAN, APPELLANT.

REDEMPTION FROM SALE-When denied.-Where, by order of the Court, lands are sold and a deed executed by commissioners appointed for that purpose and their proceedings are confirmed, in the absence of an appeal from said order of confirmation, the effect of the order is to deny the right to redeem from the sale,

Appeal from Sixth Judicial District, Sacramento County. The appeal is from an order granting a writ of assistance. The plaintiff obtained judgment in the court below, and a decree was entered ordering that the land described in the complaint be sold at public auction by Samuel Poorman and H. G. Smith, who were appointed commissioners for that

purpose. The said commissioners were directed by the decree to give notice of time and terms of sale by publication, and to sell for cash (as sales are made under executions issued upon judgments at law), and to execute a deed to the purchaser, who shall become invested with the title in fee, and entitled to immediate possession and to a writ of assist

ance.

The said commissioners made their report, showing that after notice given they sold said property at auction to George McKee, and executed a deed to him.

Thereupon the court confirmed and approved the proceedings of said commissioners.

McKee asked for a writ of assistance to place him in the possession of the premises.

At the hearing to show cause why the writ should not be granted, the defendant asked the court not to issue the writ. 1st, on the ground that the sale was not properly made; 2d, that the commissioners did not advertise said sale properly; 3d, that the sale was made as a Sheriff's sale, and under which the defendant should have six months in which to redeem.

The court granted the writ, from which order the defendant appealed.

D. W. Welty, for respondent.

R. P. & H. N. Clement, for appellant.

PER CURIAM.

Whatever may be the correct interpretation of the decree as originally rendered, so far as the right of the appellant to redeem is involved, it appears that the commissioners subsequently reported to the court that they had delivered a deed to the purchaser upon making the sale.

*

This action of the commissioners was thereupon approved by the court below, and an order was entered confirming their proceedings. From this order no appeal appears to have been taken, and we think that the effect of the order of confirmation, irrespective of the language of the decree, was to deny the right of the appellant to redeem from the sale. Order affirmed. Remittitur forthwith.

[No. 6,005.]

[Filed September 23, 1878.]

HEWEL, RESPONDENT, VS. LANE, APPELLANT.

MANDAMUS-SHERIFF'S RETURN-CAN NOT BE CONTRADICTED-WHEN.-It would be contrary to reason and the adjudicated cases to hold that a writ of mandamus can be resorted to for the purpose of compelling the delivery of a deed containing recitals of what occurred at the sale, contradictory of the Sheriff's return, which return he not only declines to amend, but insists in his answer to be correct in point of fact.

Appeal from the Fifth District Court, Stanislaus County. The action of the People vs. South half of Section 9 was brought to collect delinquent taxes due on said real estate. The defendant as Sheriff under a judgment and decree of the court sold said real estate for the taxes and costs of suit. He made his return, which shows that he sold the property to the plaintiff who made the highest bid therefor, being the amount of the judgment and costs. He executed a deed to the plaintiff with the recital that he, the plaintiff, was the highest bidder at the sale, etc.

The plaintiff alleges in his petition for mandamus that the recital was erroneous; that it does not truly recite the acts done by said defendant. That said sale was not made to the highest bidder but to the person who was willing to pay the amount of the judgment and costs and take the smallest portion of the said real estate; and that he (the plaintiff) was the person who offered and was willing to pay the amount of the judgment and costs, and take the smallest portion of said property, and that the smallest portion he or any other person was willing to take was the whole of said property. He further alleges that the said deed is void, and that he prepared another deed containing the true and correct recitals of all the acts done by the defendant at said sale, but defendant refused to acknowledge and deliver the same or any other deed sufficient to pass to him the legal title. He prayed for a writ of mandate compelling the defendant to execute said deed or show cause, which was granted.

The defendant for return of the writ of mandamus, among

other things, said that he had executed the deed to plaintiff in accordance with the recitals in the aforesaid return of the execution, and in accordance with the facts as they occurred at the sale, and asked that the writ be dismissed.

The findings of the court below were that all the material allegations in plaintiff's petition for a writ of mandate are true; that the recitals in the deed are erroneous, etc. At the instance of the defendants the court found also that the defendant did make a return of his proceedings under the judgment in the case of the People vs. South half of Section 9, showing that he had sold the property to the plaintiff as the highest bidder, etc. A peremptory mandamus was awarded, and defendant appealed.

W. E. Turner and Terry, McKinne & Terry, for respondent.

A purchaser at Sheriff's sale is not bound by the return of the officer. His title rests on the judgment, execution, sale and deed. (12 Cal. 130; 38 Cal. 649; 40 Cal. 281; 43 Cal. 643; 4 Wheat. 505; 21 Cal. 224.)

Schell & Scrivner, for appellants.

The Sheriff's return is not traversable, and is conclusive as to the manner in which said tax sale was made. (5 Cal. 54; 14 Cal. 13; Freeman on Executions, Sec. 363.)

PER CURIAM.

The return of the Sheriff, as remaining on file, in the case of the People vs. South half of Sec. 19, shows that the land in question was, in point of fact, sold to the respondent, as being the highest bidder, (“to A. Hewell, who made the highest bid therefor,") and not as the person who would take the smallest or least quantity of the land, and pay the tax adjudged due. In view of the facts stated in the return therefor, the appellant (who was the Sheriff who made the sale), ought not to deliver a deed to the respondent, as purchaser, and should he do so, such deed would be absolutely void.

But the present proceeding is one in mandamus against the Sheriff, to compel him to deliver to the respondent a