KNIGHT v. FAIR, Sheriff

KNIGHT v. FAIR, Sheriff. In an action against a Sheriff for special damages, resulting from a refusal on the part of the Sheriff, to make and deliver to plaintiff a deed to certain premises purchased by plaintiff at Sheriff’s sale, when there is no allegation'in the complaint of title, nor any averment that, in case the deed had been executed, plaintiff would have been able to recover possession of the premises, or the rents and profits : Beld, That such complaint is insufficient. Appeal from the Ninth District, County of Siskiyou. 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. The Court below sustained the demurrer, and judgment was entered for defendant. Plaintiff appealed to this Court. J. A. Fletcher for Appellant. J. Berry for Respondent. The complaint is wholly defective, and “ under no enlightened system of jurisprudence should such pleadings be upheld, tending, as they do, to obscure the true issues involved, to surprise litigants, and embarrass Courts and lawyers.” It does not show what interest or estate Calhoun had in the premises ; it does not show that he ever had any interest whatever, not even that he was ever in possession of the premises, or of any part thereof, or of the esplees and profits thereof; and there could be no error, under the most liberal rules of construction, in sustaining the demurrer, where the plaintiff shows no right whatever, and therefore no damages. Payne & Dewey v. Treadwell, 5 Cal. 310 ; Gamer v. Marshall, 9 Cal. 268 ; Bird v. Lisbos, 9 Cal. 1; Thornburg v. Hand, 7 Cal. 554. The complaint must show in what manner the plaintiff has sustained damages. Stevens et al. v. Rowe, Sheriff, 3 Denio, 327. [MAJORITY — Baldwin, J.,] Baldwin, J., delivered the opinion of the Court—Terry, C. J., concurring. This 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 inability 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. Judgment affirmed.