
    [Sac. No. 270.
    Department Two.
    November 26, 1897.]
    GEORGE RUPERT, Respondent, v. EDWARD JONES et al., Appellants.
    Quieting Title—Execution Sale of Possessory Right—Title Acquired by Pre-emptor not Affected.—A sale under execution against a pre-emptor, who had obtained a government patent for the land prior to the sale, which did not purport to convey his title in fee, but was merely of “all the right, title, and interest” held by him on the date of the filing of an abstract of a judgment recovered against him in a justice’s court, upon which the execution was issued, at which date the pre-emption settler had only a possessory claim to the land as such settler, and ha'd not proved up or paid for the land, did not pass or affect the title acquired by him subsequently to that date, and he may maintain an action to quiet his title in fee as against the purchasers at the execution sale.
    APPEAL from a judgment of the Superior Court of Fresno County. J. R. Webb, Judge.
    The facts are stated in the opinion.
    John E. F. Edwards, and M. K. Harris, for Appellants.
    George L. Hood, and G. G. Goucher, for Respondent.
   BELCHER, C.

This is an action to quiet the plaintiff’s title to a quarter section of land in the county of Fresno. The plaintiff had judgment, and the defendants appeal therefrom on the judgment-roll, without any statement or bills of exceptions.

The material facts of the case, as found by the court, are in substance as follows: In April, 1891, plaintiff entered into possession of the said quarter section of land, and on November 22, 1891. made final proof thereon in the United States land office at Visalia, county of Tulare. On February 14, 1893, the United States government issued to the plaintiff its patent for the said land. On November 10, 1891, defendants filed in the recorder’s office in the county of Fresno an abstract of a judgment recovered by them against the plaintiff in a justice’s court on August 36, 1891. On August 36, 1893, an execution was issued out of the justice’s court, and on October 7, 1893, “all of the right, title, and interest of George Rupert, the plaintiff, which he had on the tenth day of November, 1891, in the said land described in the plaintiffs complaint was sold by á constable.” The said constable ‘'sold, or attempted to sell, only such right, title, and interest in the said lands as the plaintiff herein had and was possessed of on the tenth day of ¡November, 1891, and no interest of said plaintiff subsequent to said tenth day of ¡November, 1891, was sold by said constable, or claimed to be sold;”

And as conclusions of law the court found that the plaintiff was the owner in fee of the land described in his complaint, and was entitled to a judgment quieting his title to the same as against the defendants and each of them.

It will be observed that it does not appear from the findings that the defendants were purchasers at the constable’s sale or successors.in interest of a purchaser, or that they ever received a constable’s deed for 'any interest sold. But assuming that they were such purchasers, and in due time received the constable’s deed, still, on the 10th of ¡November, 1891, the plaintiff had only a possessory claim to the land as a pre-emption settler. He had not then any title to the land and did not acquire any until he proved up and paid for it. The title afterward acquired did not pass by the sale, as it is found to have been made, and was not affected by it. (Montgomery v. Whiting, 40 Cal. 294; Moore v. Besse, 43 Cal. 511; Thrift v. Delaney, 69 Cal. 192.)

The judgment should be affirmed.

Haynes, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

McFarland; J., Van Fleet, J., Garoutte, J. ,

Hearing in Bank denied.  