Munkelt v. Kumberg

BABNABD, P. J.

This is an action by a purchaser at a foreclosure sale to recover from the tenant in possession for the use of the property during the redemption period.

The property, consisting of 180 acres of land, was sold at foreclosure sale on June 1, 1934, and was purchased by the plaintiffs as trustees. In May, 1935, the defendant harvested a crop of grain which he had sowed in October, 1934, and stored the same in a warehouse. The plaintiffs alleged and proved and the court found that the usual and customary method of renting such land in that vicinity was on a crop

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share basis, and that the value of the use and occupation of this land for that period was one-fourth of all grain raised, sacked and delivered in kind. Judgment was entered accordingly and the defendant appealed.

The appellant concedes his liability and the amount of grain raised on the land but contends here, as at the trial, that he is liable only for the rental, or share of the crop, payable during that year under a lease with the former owner. He relies on an oral lease covering a three-year period from October 1, 1932, to October 1, 1935, which provided that he was to level 60 acres of the land which was then unfit for cultivation, that he was to have the use of this 60 acres in return for his work and expense in leveling the same, and that he was to deliver to the owner one-third of all grain raised on the other 120 acres, but the owner was to pay for the sacks and twine used on her part of the grain and for all of the water used on the entire tract. The difference between the rental value as fixed by the court and the share conceded by the appellant amounts to about $250.

The main question presented is thus stated by appellant: “Is a purchaser at a mortgage foreclosure sale, after redemption, entitled to sue for the reasonable, usable value of the land occupied by a tenant, or has the tenant a right to tender the amount of the rental provided in the lease.” The question thus suggested, whether such a purchaser has a right of election as between the “rents” and “the value of the use and occupation”, under the provisions of section 707 of the Code of Civil Procedure, need not be decided here. Without doubt, such a purchaser may sue for the reasonable rental value, and if it be assumed that an agreed rental would be controlling as to the liability of a tenant, it would at least be incumbent upon the tenant to prove, as a partial defense, that he held under a lease and what the agreed rental was for the period in question.