Knight v. Fair

Decided January 15, 1859

California Supreme Court · decided 1859-01-15

This was an action for special damage, against the defendant, as Sheriff of the County of Siskiyou, for a failure to deliver to the plaintiff a deed to certain real estate purchased by the plaintiff at an execution sale, made by the defendant as Sheriff of said county. The defects of the complaint are stated in the opinion of the Court. Defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

Decided 1859-01-15

Baldwin, J.,

¶1delivered the opinion of the Court—Terry, C. J., concurring.

¶2This case was for damages sustained by the plaintiff, by reason of the refusal of the defendant, Sheriff of Siskiyou county, to execute to him a deed for land bought at public sale ; but the complaint is fatally defective in this, that it alleges special damages, arising from the ina*298bility to get rents and profits from the estate—a tavern in Yreka— without averring that the defendant in execution had any title to the premises, or that the plaintiff, if the Sheriff had made him a deed, would have been either entitled to receive, or been able to recover, possession of the property, or rents or profits. For this error the Court properly sustained the demurrer.

¶3Judgment affirmed.