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ered by the sheriff to the defendant on October 4, 1886, at 8:30 a. m. The mortgage was executed between 2 and 3 o'clock of the same day. The court, in its opinion, on page 155, recites the facts relating to the service of the attachment, as follows:
"He (the defendant Stevenson) received these papers from the sheriff in the lane in the southern part of the town of Roseburg. The mortgaged premises were situated about thirteen miles from this point. The individual land of Stevenson joins the 1,500-acre tract owned in common with Gabbert, and the distance between the 640-acre tract and the 1,500-acre tract is about onefourth of a mile." "The sheriff, by his return on the writ of attachment, certified as follows:
“And I further certify that I did, on the said 4th day of October, 1886, by virtue of said annexed writ of attachment above described, attach the following described real property of George Stevenson, one of the defendants named in said annexed writ of attachment, subject to the former attachment of Koshland Bros., hereinbefore mentioned. I did, in pursuance of said annexed writ of attachment, on the said 4th day of October, 1886, at 8:30 a. m. of said day, attach the following described real property by delivering to said George Stevenson in person a copy of the annexed writ of attachment, duly certified to by me as sheriff aforesaid, and thereafter, to wit, at 1:30 o'clock p. m. of said 4th day of October, 1886, I duly posted a copy of said annexed writ of attachment, duly certified to by me as sheriff, upon the front of the dwelling house of said George Stevenson, within said county and state, as no person could be found at the place of residence of said defendant George Stevenson of suitable age and discretion with whom to leave said copy of said writ of attachment, as aforesaid."
No other facts appeared in the return showing the manner of the service of the attachment. But enough appeared to overcome the presumption that the statute had been complied with in such service. The two tracts of land claimed to be subject to the attachment lien were distant from each other about one-quarter of a mile. The court, referring to this fact, says:
"Several separate and distinct parcels of land could not be attached by posting up a copy of the writ on one only of them."
With respect to the defective return, the court says:
“The return of the sheriff fails to show that George H. Stevenson was an occupant of the premises sought to be attached, and it does not appear that the copy of the writ was posted in a conspicuous place on said premises. The sheriff returns that it was posted 'upon the front of the dwelling house of said Geo. H. Stevenson within said county and state, but it does not appear that said dwelling house was the property sought to be attached, or that the front of said dwelling house was 'a conspicuous place.'”
The court then refers to the case of Mickey v. Stratton, 5 Sawy. 475, Fed. Cas. No. 9,530, as an authority for the insufficiency of such return. In this last case the attachment also referred to two pieces of property, and the returns show what the sheriff did in the execution of the writ, which was that with respect to one piece of property a copy of the writ was posted on the building, and with respect to the other a copy was posted on the block. In the opinion of the court “the return , is radically defective because it does not appear therefrom that the premises were unoccupied at the time of this alleged service by leaving a copy.of the writ upon the premises, and, unless they were, the sheriff
had no authority to make such service.” The court had previously said, “Neither does it appear from the return that the copy left upon the premises was posted in a conspicuous place." The facts stated in the return in this case were also sufficient to overcome the presumption that the officer had performed his duty in the service of the writ, and that his official acts were regular; and the court well says:
"The presumption that he did his duty applies as well to the making of the return as to the service of the writ, and therefore there is no room to presume that he did his duty in making the service more fully or otherwise than he has stated in his return."
The cases of Sharp v. Baird, 43 Cal. 579, Watt v. Wright, 66 Cal. 206, 5 Pac. 91, and Brusie v. Gates, 80 Cal. 462, 22 Pac. 284, involved the question of a sufficient return based upon a similar statute of the state of California; but in those cases there was enough stated in the return to overcome the presumption that the service had been made in accordance with the statute, and the service was held to be insufficient. These cases are based upon the rule that, where the record states what steps were taken in the performance of an official act, it will not be presumed that others were taken, when to do so would tend to contradict the record. In other words, it is a general principle to presume that public officers act correctly, in accordance with the law and their instructions, until the contrary appears. Ross v. Reed, 1 Wheat. 482, 484, 4 L. Ed. 141; Gonzales v. Ross, 120 U. S. 605, 622, 7 Sup. Ct. 705, 30 L. Ed. 801. In the present case there is nothing stated in the return, nor is there any fact before the court, tending to show that the marshal failed in any particular to do his duty in serving the attachment, or that his official acts were in any respect irregular. The presumption therefore arises that the writ of attachment was served in accordance with the requirements of the statute, and that the writ was valid
In Dodge v. Butler, 42 N. J. Law, 370, the court said:
“The return made to the writ by the constable to whom it was delivered for service shows a substantial execution of it. It does not therein affirmatively appear that in its execution all the requirements of the statute were observed by him, but this will, upon the return made to this writ, in the absence of other proof, be presumed, in virtue of the common legal intendment in favor of the due execution of process.
* It is not shown that any essential act was omitted by the officer, and, presumptively, there was none."
In Anderson v. Sutton, 2 Duv. (Ky.) 480, the court said:
"The next objection urged against the judgment by appellant worthy of notice is that the sheriff who executed the orders for the attachment failed to state in his returns that he executed them on the real estate by leaving with the occupant thereof a copy of said orders, or that there was no occupant, and he posted up copies of them in a conspicuous place on said real property. He stated in his return that he had levied the attachments on tbe property of the appellant, and gave a particular description of the property so levied upon. Nothing appearing to the contrary, the law presumes he performed his duty and complied with the requirements of the law, and his return must therefore be regarded as sufficient in the absence of countervailing evidence."
There is no claim made that the attachment proceedings were in fact irregular. For more than 10 years since the return of the writ the de
fendant has made no objection to the attachment proceedings. It has been open to it during all this time to move to quash the writ on the ground that the marshal had not made a valid service, but it has taken no such action. Under the circumstances it would be manifestly unjust to deny to the return of the marshal the presumption of regularity accorded to official acts.
The order of the District Court denying plaintiff's motion to amend the judgment is reversed, with instructions to allow the amendment adding thereto a clause ordering that the property attached in the action be sold to satisfy the plaintiff's demands.
BROSNAN v. WHITE.
Under Carter's Alaska Civ. Code, $ 303, providing that, in an action to recover possession of real property, plaintiff, in his complaint, shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, etc., and that he is entitled to possession thereof, and that defendant wrongfully withholds the same from him, to his damage in such sum as may be therein claimed, plaintiff is not required in such action to further state the nature of her estate in the
property. 2. SAME-COMMON SOURCE.
Where both parties to an action of ejectment claimed from a common source, it was unnecessary for either to deraign title from another source, or to pursue the chain of title further back than their common grantor.
[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Ejectment, $8
59-62.] 3. SAME-DEPARTURE.
Plaintiff in ejectment alleged that she and S. went on the premises in March, 1898, which were then unoccupied, and erected a building thereon. Defendant alleged that on March 6, 1898, the premises were unoccupied and unclaimed, and were entered and appropriated by G., who thereafter conveyed to C., who conveyed to R., who conveyed to defendant; tbat defendant had no notice of plaintiff's claim, and that he had made valuable improvements upon the property. Plaintiff replied, admitting defendant's allegations as to entry on the unappropriated land by G. and bis conveyance to R., and that defendant had erected the improvements as alleged, but denied that it was done without notice of plaintiff's interest, and denied that S. conveyed to R. or that R. conveyed to defendant, and then alleged that S. conveyed an undivided half interest to plaintiff, who was then in possession as a tenant in common, and from that time plaintiff continued to occupy the premises until ousted by defendant as alleged in the complaint. Held that, in the absence of a motion or demurrer, the departure in the reply, with reference to the appropriation of the land, from the allegation in the complaint, was not such as to justify the trial court in rendering judgment for defendant on the pleadings. In Error to the District Court of the United States for the Third Division of the District of Alaska.
The plaintiff in error and the defendant in error having been respectively the plaintiff and the defendant in the court below, they will be so designated here.
The plaintiff brought an action of ejectment against the defendant, alleging in her complaint, in substance, as follows: That the plaintiff is the owner
of an undivided one-half interest in, and is entitled to the possession of, lot 4. in block 8, in the town of Valdez; that the nature of the estate of plaintiff in and to said described premises is that of prior possession; that in the * month of March, 1898, said premises were a portion of the unsurveyed, unclaimed, and unoccupied public lands of the United States, subject to settlement thereon for the purposes of business, trade, and residence; that the plaintiff and one William Spencer, while the same was unoccupied and unclaimed public land of the United States, went upon the same and erected thereon a substantial building, and occupied and used the same for a hotel as tenants in common; that the plaintiff continued to occupy the same until the month of November, 1900, when the defendant, without right or title, entered into possession of said premises, and ousted and ejected the plaintiff therefrom, and now wrongfully and unlawfully withholds the same and the possession thereof from the plaintiff.
The answer denied the allegations of the complaint, and set up a further and separate defense, the substance of which is in the following paragraphs:
First. That on March 6, 1898, the premises described in the complaint were unoccupied, unclaimed, and unsurveyed public lands of the United States, and that, while they were so unoccupied, one S. W. Gray went upon said premises, and claimed and appropriated the same by posting a notice thereon, and by filing a notice of record with the town recorder, which notice was recorded at page 3 of Book of Town Lot Records of the town of Valdez.
Second. That thereafter, during the month of March, 1898, said Gray erected on said premises a house, and occupied the same as a residence and hotel.
Third. That on July 7, 1898, said Gray, for a valuable consideration, sold and conveyed said premises to one William Spencer by a deed which was recorded at pages 23 and 24 of the Town Lot Records of the town of Valdez, and said William Spencer thereupon went into possession of said premises.
Fourth. That on November 24, 1900, the said Spencer, for a valuable consideration, sold and conveyed said premises to J. P. Roberts by a deed recorded at pages 189 and 190 of Smith's Record of Deeds for Valdez precinct.
Fifth. That on November 30, 1900, said Roberts, for a valuable consideration, sold and conveyed said premises to the defendant, and that ever since that date the defendant has been, and now is, the owner in fee simple of and in the possession thereof.
Sixth. That the defendant had no notice or knowledge of the plaintiff's right, title, or interest in or to said premises; that the plaintiff's pretended interest did not appear of record; and that the defendant purchased said premises in good faith, and for a valuable consideration, and without notice or knowledge of plaintiff's pretended title or interest.
Seventh. That since the defendant purchased said premises he has made valuable improvements thereon by erecting a large saloon and lodging house, the reasonable value of which is $6,000; and that said improvements were made in good faith, and without any knowledge or notice of plaintiff's pretended interest.
To this answer the plaintiff replied, admitting the truth of the first, second, and third paragraphs of said affirmative matter of the answer. As to the fourth and fifth paragraphs, she denied any knowledge or information sufficient to form belief, "and therefore denies the said paragraphs and the whole thereof." She denied the whole of the sixth paragraph. She admitted that the defendant had made valuable improvements as alleged in paragraph 7, and that they were of the value of $6,000, but she denied that the improve. ments were made in good faith, or without notice or knowledge of her interest. She alleged further in the reply that on July 17, 1898, while the plaintiff and said William Spencer were in possession of said premises, and claiming the same under the town site laws of the United States as tenants in common, and while using the same premises for purposes of business, trade, and residence, said Spencer did, by a good and sufficient deed, for a valuable and adequate consideration, to wit, the sum of $175, sell and convey an undivided one-half interest in and to said premises, together with the buildings thereon, to the plaintiff; and that thereafter the plaintiff continued to occupy said premises for the purposes of trade and business until the month of November, 1900, when the defendant entered upon said premises, took possession thereof,
removed plaintiff's buildings, and built thereon the said saloon and lodging house, and that he continues to hold all of said premises adversely to the plaintiff and in hostility to her right of possession. On these pleadings the plaintiff moved for a judgment, and the motion was overruled by the court.
The case came on for trial before a jury. After the jury had been impaneled and sworn, the plaintiff's attorney opened her case to the jury, and stated "that the property in question had been located by four persons, namely, William Spencer, W. S. Gray, the plaintiff, and one Mrs. S. Smith." After the defendant's case had been stated to the jury, the plaintiff called a witness and had him sworn. Thereupon the attorneys for the defendant interposed an objection to the introduction of any testimony by the plaintiff, and moved for a judgment on the pleadings. The court sustained the motion, and judg. ment was entered dismissing the action and adjudging that the defendant recover from the plaintiff his costs and disbursements. Judgment was entered on November 9, 1903. On November 17, 1903, the plaintiff moved the court for an order amending the judgment so as to make it a judgment of nonsuit, baving the effect to dismiss the plaintiff's action, but to be no bar to a new action for the same cause. On November 21, 1903, the court denied the motion.
Volney T. Hoggatt, James E. Fenton, and W. T. Hume, for plaintiff in error.
John A. Carson, for defendant in error.
GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.
The question here presented is whether the District Court erred in entering judgment for the defendant on the pleadings. The complaint states a good cause of action in ejectment. It alleges that the plaintiff owns and is entitled to the possession of an undivided onehalf of the premises in controversy. The plaintiff was not required to further state the nature of her estate. Carter's Civ. Code Alaska, § 303. She proceeded, however, to allege that the nature of her estate was prior possession, and that in March, 1898, she and William Spencer went upon the premises, which were then unoccupied, and erected a building thereon. The defendant answered, denying all the allegations of the complaint, and then, instead of complying with section 304 of Carter's Civil Code of Alaska by setting forth the nature of his estate, he proceeded to set forth the facts on which his claim of estate was based. He alleged: First, that on March 6, 1898, the premises were unoccupied and unclaimed, and were on that date entered and appropriated by S. W. Gray; second, that in March, 1898, Gray erected a house on the premises, and occupied the same; third, that on July 7, 1898, Gray conveyed the lot to William Spencer, and that the latter went into possession; fourth, that on November 24, 1900, Spencer conveyed to Roberts; fifth, that on November 30, 1900, Roberts conveyed to the defendant; sixth, that the defendant had no notice of the plaintiff's claim; and, seventh, that the defendant has made the improvements, amounting to $6,000. The reply admits the first, second, and third of these paragraphs of the answer. It denies the fourth, fifth, and sixth. It admits that $6,000 were expended in improvements, but denies that it was done without notice of the plaintiff's interest. It then proceeds to allege affirmatively that on July 17, 1898, William Spencer conveyed an undivided one