This action was brought to recover the rents and profits of certain premises, for the period of time during which the possession was held by the defendant, after the service of the writ of assistance, which was issued in the case of Henderson v. McTucker. The defendant offered evidence to prove that Jacob and William Morss purchased the premises from the State (they being a portion of a thirty-sixth section); that they conveyed the same to Nathaniel McTucker; that the latter executed to Jacob Morss a mortgage of the premises to secure a part of the purchase-money; that the mortgage and the note thereby secured were assigned to the defendant; that thereafter the mortgage was foreclosed, the premises sold, and a deed was executed by the sheriff to the defendant. The plaintiff objected to the evidence, and it was excluded. Without regard to the question whether the answer states facts sufficient to entitle the defendant to affirmative relief, it is clear, we think, that the above mentioned evidence was admissible under the denial in the answer that the plaintiff was entitled to the possession of the premises. It tended to show that all the right which was transferred by the State to Jacob and William Morss, by the certificates of purchase, had vested in the defendant, and that he thereby became entitled to the possession of the premises.

It was determined in Henderson v. McTucker (45 Cal. 647), that the question as to the right of Daniels to the possession, as against Henderson, could not properly be litigated in a motion for a writ of assistance. The judgment, therefore, in that case did not determine or estop the *248defendant from denying that Daniels was entitled to the possession of the premises.

The plaintiff also attempts to justify the exclusion of the evidence on the ground that before the foreclosure of the mortgage by Henderson, Nathaniel McTucker had assigned his certificates of purchase to John and Mary McTucker, who were not parties to the foreclosure suit, and that the plaintiff holding under them, is therefore unaffected by the judgment in that suit. To this position—assuming that such an assignment of the certificates was shown—there are several answers: one of which is that the defendant, in addition to the facts which the offered evidence tended to prove, might have been able to prove that John and Mary McTucker by the filing of a lis pendens, or because of a failure on their part to record the assignments of the certificates of purchase, as provided for by section 246 of the Practice Act, as amended by the statute of 1866, p. 704, or by some other means or mode, were bound by the judgment of foreclosure.

Judgment and order reversed, and cause remanded for a new trial.

Neither Mr. Chief Justice Wallace nor Mr. Justice Niles expressed an opinion.