[Syllabus Material] [Syllabus Material]          Appeal from the Superior Court of San Francisco.

         The plaintiff complained that he is the owner in fee simple, and entitled to the possession of the building formerly known as the Pacific Hotel, and now called the Columbia Hotel, in the city of San Francisco, and the lot on which it stands, (describing it,) and that defendants are in possession of said property, and unlawfully withhold possession from him. And further shows that on the 17th November, 1851, he recovered judgment in the District Court of the Fourth District, against one George W. Bradley, then the owner of the property, and issued an execution thereon to the sheriff of said county, who levied upon the said Columbia Hotel and the said lot on which the same stands, and afterwards sold and conveyed the same to the plaintiff, who by reason thereof became and is now the owner thereof, and entitled to the possession, etc. And further saith, that defendants are indebted to him $ 2000, for withholding the possession of the last-mentioned property from plaintiff, from the 5th January, 1852; and a further sum of $ 2000, for the rents, issues, and profits, of the said hotel and property, from the said 5th January, 1852, till the present time; and prays that defendants be adjudged to surrender the possession, and to pay the damages for withholding, etc., and for the rents, etc.

         The defendants answer, and deny plaintiff's ownership, his right to possession, the unlawful withholding of possession, and all indebtedness; and show and aver that they are in lawful possession of said premises, and entitled thereto. That on the 8th March, 1850, Christopher Russ, the owner, leased the said premises for the term of three years to the Tallman Mining and Trading Association, at a ground rent of $ 500 per annum; that said association, on the 22d November, 1850, assigned said term to George W. Bradley, who made said improvements, first known as the Richelieu Hotel; that on the 26th December, 1850, said Bradley conveyed his term in the premises and the buildings thereon, by deed of defeasance or mortgage, to Jonathan Morse; that on the 30th April, 1851, Bradley leased the premises to Christiana Keys, now Dopkins, wife of Daniel Dopkins, defendant, for one year, to commence on the 1st May, 1851. That on the 1st July, 1851, the said Christiana, then Christiana Keys, contracted with said Morse, for the purchase of his interest, and mortgage on the premises, she paying therefor $ 2500, and said Morse, on the 16th July, 1852, conveyed to said Christiana, then married to Dopkins, all his right, title, and interest, in the premises, including the buildings thereon and his mortgage, to the amount of $ 2500, and the interest accrued and accruing thereon.

         And further show, that said Christiana possessed said premises lawfully, as tenant aforesaid, until she became owner by the contract and conveyance with said Morse, and from that time has possessed the same as mortgagee in possession; and that defendant has been since his marriage, and now is, in possession, in right of his wife. That plaintiff has no other or better right than that obtained through Bradley, which is at most but an equity of redemption; and pray that plaintiff's bill be dismissed, etc.

         The statement of the case as exhibited on the record shows, that the plaintiff gave in evidence the judgment and sale, as laid in his complaint, that Christopher Russ was owner of the premises, who on the 8th March, 1850, leased to the Tallman Mining Company, for three years, who assigned the lease to Bradley, who took possession of the premises, and was the owner of the buildings thereon, at the time of the assignment to him. That after the sale in January, plaintiff demanded possession of defendants, or payment of rent: they refused to do either; and he demanded possession again after he received his deed in July, 1852; when defendants again refused, and claimed to be the owners of the property. The plaintiff then showed them his deed from the sheriff; and that at the time of the sheriff's levy and sale, Bradley was in the hotel engaged in conducting the same, and that the rent was worth $ 300 a month.

         The sheriff's book showed, that the sale was made subject to redemption, and that after the time for redemption had expired a deed was executed to plaintiff, under the sheriff's sale. Plaintiff gave in evidence the sheriff's deed to him, dated 15th July, 1852.

         Defendants here moved for a nonsuit, alleging irregularities in the deed; which the Court overruled.

         The defendants gave in evidence a mortgage, Bradley to Morse, 26th December, 1850; contract between Morse and Christiana Keys, July 1st, 1851; assignment 16th June, 1851, from Morse to Christiana Keys, wife of Dopkins; conveyance from Morse to Christiana Keys, November 21st, 1851; lease from Bradley to Christiana Keys, 30th April, 1851.

         Morse, for defendants, proved, that Bradley negotiated the contract between him and Mrs. Dopkins of July 1st, 1851; that both parties lived on the premises; that Bradley generally made the payments under the agreement; that Bradley also negotiated the agreement of 20th November, 1851, (for property sold by Mrs. Keys to Bradley,) the proceeds of which, $ 1200, had been paid to witness; that witness had been paid the $ 2500, mentioned in the agreement of July 1st, 1851; the endorsement is signed by Bradley; that the hotel was worth in rents the past year from 250 to 300 dollars per month. That witness held the mortgage and notes from Bradley to him, until June, 1852, and then assigned, and gave one of them up to Mrs. Keys, and still holds the mortgage and the other note, which remain due and unpaid. The endorsements on the contract of July, 1851, are signed by Bradley.

         Bradley swore that he leased to Mrs. Keys, 30th April, 1851, and gave the lease in evidence; she kept the house on her own account. The rent went on only till the 1st July, 1851; from the time of the sale, (1st July,) witness only assisted. Witness went to Morse, and told him he would not reduce his debt, unless he agreed to an arrangement, and Mrs. Keys said, she would buy if witness was willing; the agreement was then made between Morse and Mrs. Keys, of the 1st July, 1851; witness sold the furniture in the house to her, after she bought Morse out. She paid him $ 100 rent and board; she was to have the house on these conditions before she purchased. After July, witness was there nearly all the time, and was paid for his services.

         The jury, by agreement of counsel, and upon a statement of questions, brought in a special verdict, and found as follows:

         1st. That the monthly rent or value of the hotel, from 1st April, 1851, to the present time was $ 300 per month.

         2d. That the monthly rent of the cottages for the same time, including ground rent, was $ 150 per month.

         3d. That the sale and transfer to Mrs. Keys was done by her in good faith, and with no intent to hinder, delay, or defraud the creditors of Bradley.

         Upon the verdict so rendered, and the undisputed facts, the Court found that the plaintiff was entitled to recover the possession of the premises in the complaint mentioned, and assessed damages for the detention, at the sum of $ 2000, and ordered judgment accordingly. Defendants appealed.

         COUNSEL