Legal Opinion

Smith v. Reed

California Supreme Court

Decided July 1, 1877No. 5537PublishedCited by 5 opinions

Appeal from the District Court, Twentieth Judicial District, County of Santa Clara. On the 23rd day of March, 1858, Elliott Reed recovered a judgment against Samuel J. Crosby for the sum of two thousand five hundred and eighty-seven dollars and fifty cents, bearing interest at two and one-half per cent, per month, in the District Court of the Third Judicial District, County of Santa Clara.

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Appeal from the District Court, Twentieth Judicial District, County of Santa Clara. On the 23rd day of March, 1858, Elliott Reed recovered a judgment against Samuel J. Crosby for the sum of two thousand five hundred and eighty-seven dollars and fifty cents, bearing interest at two and one-half per cent, per month, in the District Court of the Third Judicial District, County of Santa Clara. On the 29th of March, 1859, Crosby died, intestate, owning the undivided one-third of a tract of land in San Diego County, known as the Cuyamaca Rancho, containing thirty-five thousand five hundred and one…

1Opinion of the Court

Assuming that the execution was void, we submit that a sale which is utterly void, made upon a void execution, cannot operate as a satisfaction of the judgment. It is void, and accomplishes nothing. (Field v. Paulding, 3 Abb. Pr. 139.)

The title does not fail by reason of any irregularity in the sale, but because the Sheriff had in fact no execution. And sec. 708 of the Code is not applicable to such a case.

James H Birch, Jr., and Bodley & Campbell, for the Respondent.

As Reed was the judgment-creditor, had the execution levied and the land sold, all under his own direction and supervision, and…

2Cases cited1 opinion

  1. Field v. PauldingNew York Court of Common Pleas · 1856

3Cited by5 opinions

  1. Stanley v. WestoverCalifornia Court of Appeal · 1928
  2. Merguire v. O'DonnellCalifornia Supreme Court · 1903
  3. Sullivan v. WellbornCalifornia Supreme Court · 1948
  4. Calhoun, Denny & Ewing v. QuinlanWashington Supreme Court · 1915
  5. Busch v. TruittCalifornia Court of Appeal · 1947

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