Allen v. Phelps

Decided July 15, 1854

California Supreme Court · decided 1854-07-15

This was a proceeding instituted by the plaintiff, Robert. Allen, against Bethuel Phelps and Paul Shirley, the Sheriff of Solano County, to restrain them from selling certain lots in the City of Benicia, under a judgment for the foreclosure of a * mortgage, including them, and to [257] declare the said mortgage void, as to said lots, under the following circumstances: On the 2d of February, 1850, Robert Semple sold and conveyed the property in question to Stewart & Cooke,…

Cited by 2 later decisions — most recently September 1887

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1854-07-15

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Mr. Justice Heydeneeldt

¶1delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

¶2The case rests simply upon the fact, whether the action of Semple v. Stewart & Cooke, was for the enforcement of the former’s lien in equity, or a mere action at law, for the *recovery of the money ? From the language [259] used in the findings of the Judge, we are bound to infer the latter, because it is not distinctly expressive of the former. Error must be clearly manifest, and will not be implied.

¶3The position that the purchaser, at Sheriff’s sale should be subrogated to Semple’s equitable lien, cannot be taken in this suit; if available at all,, it must be made so, in a separate equitable action.

¶4Judgment affirmed.