JAMES M. REYNOLDS, Administrator of the Estate of W. W. Reynolds, Deceased, ISAAC REYNOLDS, JOHN KIRK, and D. K. NEWELL v. CHARLES HOSMER, 45 Cal. 616

By the Court, Belcher, J.: This is an action to recover damages. The defendant demurred and answered to the complaint. The demurrer was overruled and after trial the plaintiffs recovered judgment, from which the defendant has appealed. The points made relate to the sufficiency of the complaint. It is insisted that the complaint is insufficient because it does not allege the existence of the property for the loss of which the plaintiffs claim damages.

It is alleged that the South Fork Canal Company was • organized for the purpose of carrying water, by means of a canal and flume to be constructed between certain points named; that an action was commenced against the company and others, and that such proceedings were had in the action that it was afterwards adjudged by the Circuit Court of the United States that the plaintiff in the action had a lien upon the company’s canal and flume for labor and materials furnished in their construction, and that the lien be foreclosed and the canal and flume be sold; that under and by virtue of this decree the canal and flume were sold; that the sale was approved, and thereafter a deed was made to the purchaser, describing the property as “ the canal, flume, and ditch known as the South Fork Canal, with the appurtenances thereof, situated,” etc; that the judgment was after-wards reversed by the Supreme Court of the United States, and it was by that Court adjudged and decreed that the plaintiff" had no lien on the canal and flume, extending, etc., a distance of sixteen and one quarter miles; and that at the time of the rendition of the judgment and decree by the Circuit Court, and at the time of the sale and the confirmation thereof, the plaintiffs were the owners of seven tenths of said canal and flume, and the appurtenances thereof.

While in this there is no direct averment that the canal and flume were ever constructed, that fact clearly, and we think sufficiently, appears by necessary inference. It is not usual, and ordinarily is not necessary, to aver the existence of the subject matter about which litigation arises. If the action had been ejectment for the canal, it would have been sufficient to have alleged the ownership of the plaintiffs and an ouster by the defendant. So, if it had been trespass, only the possession of the plaintiffs and the intrusion of the defendant need have been stated.

The point that the respondents are not shown by the complaint to have been parties to or connected with the action of Gordon v. South Fork Canal Company is answered by the amendments filed to the complaint. If it was error to overrule the demurrer on this ground, the error was cured when the complaint was amended, if or are we at liberty to disregard these amendments.- They were filed by the permission of the Court before the argument was concluded, and there is nothing in the record to show that the counsel for defendant were not present and consenting.

The minutes of the Clerk show, it is true, that leave was granted to file an amended complaint, while only amendments to the complaint were filed. This was undoubtedly an error of the Clerk in writing up his minutes, and furnishes no ground for wholly disregarding the amendments.

It is alleged in the complaint that after the mandate and opinion of the Supreme Court were filed in the Circuit Court, the respondents, upon notice to the appellant, filed their petition to set aside the sale of the canal, and to modify the original decree, so as to make it conform to the opinion of the Supreme Court, and their application was denied. It is claimed that this action of the Circuit Court left the original decree in full force and effect, notwithstanding the judgment of the Supreme Court, and that respondents’ only remedy was either by a new appeal or by mandamus. We do not think so.

When the Supreme Court reversed the judgment of the Circuit Court, and adjudged that the plaintiff had no lien on a portion of -the canal, and its mandate was filed in the lower Court, showing those facts, the judgment was reversed, whether the lower Court afterwards inade any order conforming its judgment to that of the Supreme Court or not. If the plaintiff’s have any rights here, they come from the reversal by the Supreme Court, and not from any subsequent action or want of action by the Circuit Court.

After the judgment was rendered invehe Circuit Court, but before the sale, the plaintiff in that action assigned to the defendant in this all his right, title, and interest in. the judgment, and in the canal and flume. The defendant then caused the canal to be sold under the judgment, and at such sale became the purchaser thereof for the sum of seventy-five thousand dollars.

It is now contended that if, after the reversal by the Supreme Court, the respondents had any remedy as to that portion of the canal upon which it was adjudged by the Supreme Court that the plaintiff had no lien, their remedy was to recover back the property, and not damages; or if they might recover damages, then their action should have been against Gordon, the plaintiff in the action, and not against the appellant.

The doctrine formerly prevailed that whenever a sale was made under an erroneous decree or judgment, which was afterwards reversed—the Court rendering the judgment having jurisdiction of the person and subject matter—the purchaser acquired a good title, notwithstanding the reversal. It was enough, it was said, for the buyer to know that the Court had jurisdiction, and exercised it, and that the judgment, on the faith of which he purchased, was made and authorized the sale. With the errors of the Court he had no concern.

The former owner was then turned over to an action for damages to make good the loss of his property. That doctrine is now so tar modified that, if the plaintiff in the judgment be himself the purchaser, the former owner, after reversal, may, at his election, either have the sale set aside and be restored to the possession, or have his action for damages. (Reynolds v. Harris, 14 Cal. 667; Johnson v. Lamping, 34 Cal. 293.) The plaintiffs, under the rule stated, were clearly entitled to affirm the sale, and maintain their action for damages.

Nor were they, in our opinion, estopped from so doing by their abortive attempt to have the sale set aside in the Circuit Court. Upon what ground their motion was denied does not appear; but it may possibly have been because the motion was made to set aside the whole sale, and not the sale of that portion of the canal upon which it was adjudged that the plaintiff had no lien. But whatever may have been the reason, there is nothing in the complaint to show that the denial of one remedy could in any way operate as a bar to the successful prosecution of another and cumulative one.

The only other question under this head is: should the action have been brought against Gordon, and not against the defendant? It was not Gordon, but the defendant, who caused the plaintiffs’ property to be sold under an erroneous judgment, and thereby produced the injury of which the plaintiffs complain. Why should the defendant not make good the loss which he himself has occasioned? We find no authority directly in point, but in Maghee v.

Kellogg, 24 Wend. 30, it was held that money collected under a judgment which was subsequently reversed might be collected back in an action against the real parties plaintiff, when the suit had been prosecuted by the assignees of a chose in action in the name of the assignor. Langley v. Warner, 3 Coms. 327, is to the same effect. In Bank of the United States v.

Bank of Washington, 6 Pet. 15, it was held that the reversal of a judgment gives a new right or cause of action against the parties to the judgment, and creates a legal obligation on their part to restore what the other party had lost by reason of the erroneous judgment. In McJilton v. Love, 13 Ill. 486, the judgment had been assigned, and at the sale thereunder the property was purchased by the assignee, McJilton.

The action was brought to set aside the sale and restore the possession. “ The complainant,” said the Court, “ made out a clear case for the interposition of a Court of equity, as against Fairfield, and Field and Hall. And Mc-Jilton occupies no more favorable position. He is not a stranger to the judgment. He is not entitled to protection as a bona fide purchaser under an erroneous judgment. He was the assignee of the judgment, and had the control of the execution when he became the purchaser of the lands. By the assignment he succeeded to no greater rights than Field and Hall had under the judgment.

He took the judgment subject to all the equities subsisting between the original parties.” If the assignee of a judgment, under which a sale has taken place at which he was purchaser, is not a stranger to the judgment, so as to entitle him to protection as a bona fide purchaser, then it is not easy to see how he can defend against any appropriate action which the law gives to such case. On the whole we are of the opinion that the action is properly brought against the defendant. It is also claimed that the complaint is insufficient, because, while the judgment is in favor of James M.

Reynolds as administrator of the estate of W. W. Reynolds, deceased, the complaint fails to show that the estate of W. W. Reynolds ever owned any interest in the property. It is apparent, and is admitted, that the pleader intended to bring the action in the name of the administrator of the estate and for the estate. If the complaint is defective for not showing with sufficient certainty whether the title was in the estate or in the administrator, it was a defect for uncertainty, and should have been taken advantage of by special assignment in the demurrer. It was not reached by a general demurrer.

The last point presented is that there was a misjoinder of parties plaintiff, because the cause of action in favor of the estate of Reynolds and the cause of action in favor of New-ell were several and distinct and not joint. The averment is that the plaintiffs owned seven tenths of the canal. The legal presumption is that they owned it as tenants in common.

By statute in this State it is provided that all persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally bring or defend any civil action for the enforcement or protection of the rights of such party. If one of the tenants be dead his executor or administrator may be joined with the other tenants. (Touchard v. Keyes, 21 Cal. 208.) Notwithstanding the action was for damages, it was clearly for the enforcement of the rights which the plaintiffs had as tenants in common. J udgment affirmed. Mr. Justice Crockett did not express an opinion.