Scherr v. Himmelmann

By the Court, Rhodes, J.: The plaintiff having recovered a judgment against the defendant for a sum of money, and having caused an execution [316] to be issued, which was afterwards levied upon a tract of land as the property of the defendant, purchased the land for the sum of one thousand five hundred dollars, and that sum was credited upon the execution; but the defendant, as' is alleged in the complaint, had no right, title, or interest in the land, nor the possession thereof, although there appeared of record a deed of conveyance purporting to grant the land to him. The plaintiff delivered ’to the defendant a conveyance of all the right, title, and interest acquired by his purchase at such sale, and demanded that the amount bid for the land be returned to him, or that the credit on the execution be cancelled. The defendant retains the deed of conveyance delivered to him by the plaintiff. The action is an action in equity, to set aside the credit on the execution, and have the original judgment revived for the sum so credited on the execution. Cross v. Zane, 47 Cal. 602, was a suit in equity to revive the judgment under circumstances quite similar to those in this case, and objection was taken in that case, as in this, to the effect that proceedings by motion was the only remedy; but this Court reversed the judgment of the Court below, rendered upon the order sustaining the demurrer to the complaint. Upon the authority of that case we hold that the demurrer was properly overruled, and that the plaintiff was entitled to judgment upon the admission by the defendant of the facts alleged in the complaint. Judgment affirmed.