Bessinger v. Grotz

McCOMB, J.

From a judgment in favor of plaintiff, after trial before- the court without a jury, in an action pursuant to the provisions of section 707 of the Code of Civil Procedure

*

to compel an accounting for rents and profits received during the redemption period by the judgment creditor, defendant appeals.

The undisputed facts are:

On December 28, 1937, defendant purchased at a commissioner’s sale, held pursuant to a decree of foreclosure, a parcel of real estate owned by plaintiff. On January 14, 1938, defendant entered into a contract whereby he agreed to sell and convey to persons then occupying the property the parcel of real estate which he had purchased. The purchase price was $2,898.14; $298.14 payable in cash, and the balance in monthly installments of $75, commencing on January 1, 1938. On November 16, 1938, plaintiff demanded in writing that defendant furnish him a verified written statement showing the amount he had received in rents and profits from the property which he had purchased at the foreclosure sale. This statement was never furnished -and the present action was instituted pursuant to the provisions of section 707 of the Code of Civil Procedure.

[949]

On December 30, 1938, a commissioner’s deed to the property was delivered to defendant.

The trial resulted in a judgment that plaintiff had the right to redeem the property which had been sold by paying defendant $112.40. Defendant refused to accept the $112.40 tendered to him by plaintiff.

There are two questions necessary for us to determine which will be stated and answered hereunder seriatim:

First:

Were the purchasers of the foreclosed property from defendant “tenants” within the meaning of section 707 of the Code of Civil Procedure, wherein it is provided that “if the redemptioner or judgment debtor, before the expiration of the time allowed for such redemption, demands in writing of such purchaser or creditor, or his assigns, a written and verified statement of” the amount of rents and profits received from tenants in possession during the period of redemption, the period for redemption is extended until five days after such sworn statement is given by the purchaser or his assigns to the redemptioner or debtor?