The sheriff's deed to Cocke, dated January 6, 1860, took effect by relation to the date of docketing the judgment, namely, March 25, 1859, and overreaches any intermediate conveyance from Melville. (Sharp v. Baird , 43 Cal. 577; Horn v. Jones , 28 Cal. 202; Sands v. Pfeiffer , 10 Cal. 265; 4 J. J. Marshall, Ky. 641, 642.) The sheriff's deed then to Cocke, taking effect by relation on the twenty-fifth day of March, 1859, overreaches the assignment made to Ward by Melville on the twenty-sixth day of April, 1859. But it is urged that the written contract of sale made by Melville to Ward in January or February, 1859, although no one except Melville and Ward had any actual or constructive notice of its existence, overreaches and renders of no effect the sheriff's deed to Cocke. The statutes of this State in force at the time of the making of this contract provided that " conveyances of land or of any estate or interest therein may be made by deed recorded, etc." (Session Laws of 1850, 259.) (Smith v. Yule , 31 Cal. 180; Sec. 26, Act concerning Conveyances, Stats. 1850, p. 249.) In Jackson ex dem Lansing v. Chamberlain (8 Wend. 621), the Supreme Court of New York, under the statutes of that State, which are almost identical with the provisions of this " act concerning conveyances," which we have above referred to, held, " that the purchaser of land at sheriff's sale, under a judgment and execution, since the statutes requiring deeds to be recorded, will hold the same, although the defendant in the execution had, previous to the judgment, sold and conveyed the lands by deed, provided that the deed from the sheriff is recorded, previous to the record of the deed from the debtor in the execution to his grantee, unless the purchaser at sheriff's sale, at the time of his purchase, had notice of the previous deed."
OPINION By the Court:
I. The answer of the defendant Johnson, set up title in himself to the whole of the premises described in the complaint, and was evidence of an ouster of the plaintiff sufficient, in that respect, to enable him to maintain this action.
II. The title to the premises vested in the plaintiff and Sanor as tenants in common, for the assignment of the certificate of purchase from Melville to them, was recorded before the delivery of the sheriff's deed upon the Cocke execution sale.
III. When the defendant Johnson entered under his purchase from Sanor, he was, in point of law and fact, a tenant in common with Packard. Sanor, his grantor, was in possession as tenant in common with Packard, and the title under which both Sanor and Packard held the premises was matter of record. In this view, it was necessary for the defendant Johnson, in order to sustain his defense based upon the Statute of Limitations, to prove such an ouster of his co-tenant Packard, as Sanor must have proved had he remained in possession and set up an adverse possession in himself for the statutory period. In either case, an actual ouster of Johnson must have been proven in order to sustain the defense. By actual ouster we do not mean, of course, an actual turning out by the shoulder, but acts of such open and hostile occupation as have always been held necessary, in order to put the co-tenant upon notice or upon inquiry, which is the same thing. Mere exclusive occupation, removing of fences, and devoting the estate to the usual purposes of pasturage or husbandry, and payment of taxes by the co-tenant in possession, are not, of themselves, sufficient. The evidence in this case amounts to nothing more than these, and, though continued for more than five years, they are not sufficient to bar the right of entry of the plaintiff.
Judgment and order denying a new trial reversed, and cause remanded for a new trial.