75 Cal. 240, 11085, Ward v. Dougherty

Docket Nº:11085
Citation:75 Cal. 240, 17 P. 193
Opinion Judge:SEARLS, Judge
Party Name:ANNIE WARD, Respondent, v. JOHN DOUGHERTY et al. JOHN DOUGHERTY, Appellant
Attorney:John J. Coffey, for Appellant. W. M. Pierson, for Respondent.
Judge Panel:JUDGES: Searls, C. J. McKinstry, J., and Paterson, J., concurred.
Case Date:March 14, 1888
Court:Supreme Court of California
 
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Page 240

75 Cal. 240

17 P. 193

ANNIE WARD, Respondent,

v.

JOHN DOUGHERTY et al. JOHN DOUGHERTY, Appellant

No. 11085

Supreme Court of California

March 14, 1888

Department One

Hearing in Bank denied.

Appeal from a judgment of the Superior Court of the city and county of San Francisco.

COUNSEL:

John J. Coffey, for Appellant.

The delivery of the deed under which the plaintiff claims was not shown on the trial, and cannot be presumed from the fact that it was recorded. (Boyd v. Slayback , 63 Cal. 493; Hastings v. Vaugh , 5 Cal. 315; Bensley v. Atwill , 12 Cal. 231; Patterson v. Snell , 67 Me. 559; Hawkes v. Pike , 105 Mass. 560; Goodsell v. Stinson, 7 Blackf. 437; Tharp v. Jarrell , 66 Ind. 58; Parker v. Hill, 8 Met. 447; Cowles v. Bacon , 21 Conn. 463.)

W. M. Pierson, for Respondent.

JUDGES: Searls, C. J. McKinstry, J., and Paterson, J., concurred.

OPINION

SEARLS, Judge

Page 241

This is an action to quiet title to a lot of land at the corner of Van Ness Avenue and Broadway, San Francisco.

Plaintiff deraigned title through a quitclaim deed executed by the defendant, John Dougherty, on the fourteenth day of June, 1870, to one Patrick J. Tannian, and recorded June 18, 1870, at the request of one Julius George.

Plaintiff in further support of title in herself, introduced a deed from P. J. White, sheriff of the city and county of San Francisco, to James Gaffney (under whom plaintiff claims by sundry mesne conveyances), dated July 5, 1883, and executed pursuant to a decree, order of sale, and sale, in the case of James Gaffney v. Barnaby Dougherty, in an action to foreclose the lien of a street assessment, under a contract made the ninth day of September, 1866.

It appears from the judgment roll that Denis Mahoney, one of the defendants in the action, set up in a cross-complaint the prior lien upon the property of a mortgage thereon executed May 26, 1864, by Barnaby Dougherty to David Mahoney and assigned to him, the said Denis Mahoney, by the mortgagee, David Mahoney.

The lien of the street assessment was declared to be paramount to that of the mortgage. Date of decree, December 14, 1867; date of sale thereunder, January 22, 1868.

Defendant claims title to the premises under a sheriff's deed dated July 3, 1883, and executed pursuant to a foreclosure...

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