Petersen v. Jurras

PRESTON, J.

This cause is before us on motion to dismiss the appeal of plaintiff or to affirm the judgment for defendants. We have no hesitancy in pursuing the latter course, as the record indicates clearly that the appeal is nonmeritorious, probably taken for the sole purpose of delaying final judgment and thus extending the period for redemption of the property which is the subject matter of the litigation.

Defendants are husband and wife; the word “defendant” will be hereinafter used to refer to defendant John Jurras. The property in question was acquired by plaintiff in 1932,

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subject to mortgage of defendant. In January, 1933, defendant brought an action to foreclose his mortgage, had judgment therein and at the foreclosure sale, held February 3, 1933, bid in the property and received commissioner’s certificate of sale thereof. During the one-year period of redemption he collected from said property rents in the sum of $1235, and expended $179.67 for taxes. On February 2, 1934, one day prior to expiration of said statutory period, plaintiff served on defendant a demand for a written .verified statement of the amount of rents collected by him. Defendant failed to comply with the demand, and on February 7, 1934, received a commissioner’s deed to the property.

Section 707 of the Code of Civil Procedure provides: “The purchaser from the time of the sale until a redemption, and a redemptioner, from the time of his redemption until another redemption, is entitled to receive, from the tenant in possession, the rents of the property sold, or the value of the use and occupation thereof. But when any rents . . . have been received by the . . . purchaser . . . from the property thus sold preceding such redemption, the amounts of such rents and profits shall be a credit upon the redemption-money to be paid; and if the redemptioner . . . , before the expiration of the time allowed for such redemption, demands in writing of such purchaser ... a written and verified statement of the amounts of such rents . . . thus received, the period for redemption is extended five days after such sworn statement is given ... If such purchaser . . . shall, for a period of one month from and after such demand, fail or refuse to give such statement, such redemptioner . . . may bring an action ... to compel an accounting and disclosure of such rents . . . and until fifteen days from and after the final determination of such action, the right of redemption is extended to such redemptioner . . . ’’