Munzinger v. Caffrey

GRIFFIN, J.

Plaintiff and appellant instituted this action against defendants and respondents Harry Caffrey, John W„ McMurray, Roland McMurray and Ray McMurray, for

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declaratory relief and for money claimed to be due under the terms of a lease wherein appellant, on May 19, 1934, leased to respondent Harry Caffrey lot 4, block 12, in Bishop, together with certain card and pool tables, bar and fixtures, candy and cigar cases, and other furnishings and fixtures located in the building on that property. The lease was for a term of five years with a monthly rental of $125. At the time the lease to Caffrey was given the real property, but not the personal property, was subject to a mortgage in favor of Johann Albers. Suit for foreclosure of the mortgage was brought through one Tinder, executor of his estate, on the 21st day of September, 1933, and

lis pendens

recorded before the lease was made. Order of sale was issued March 12, 1934, and after the execution of the lease to Caffrey, the real property was sold to Tinder, as executor, on July 16, 1934, and a sheriff’s certificate of sale issued therefor. On June 24, 1935, Tinder, as executor, sold and assigned the real property and certificate of sale to the city of Los Angeles, the assignment being dated December 23, 1935, and the acceptance by the city of Los Angeles being dated February 18, 1936. After the sale on foreclosure, beginning on the 20th day of September, 1934, Tinder, as executor, collected from John W. McMurray, through Bay McMurray, as manager, the sum of $125 per month, until the real property and certificate of sale was sold to and accepted by the city of Los Angeles, deducting $97.30 each month from that amount, which was one per cent of the total purchase price at the foreclosure sale. The balance of the $125 was paid to appellant. On October 22, 1934, Caffrey assigned the lease, with the consent of appellant, to John W. McMurray. John W. McMurray immediately went into and remained in possession until the end of 1935, when the business was transferred to Bay McMurray under some oral agreement of sale. Thereafter, the respondent Bay McMurray alone occupied the premises. On March 2, 1936, Bay McMurray, with Boland McMurray and wife, took a direct lease from the city of Los Angeles at $80 per month for a period of three years on the above-mentioned real property. On March 3, 1939, at the termination of the former lease, Bay McMurray alone took a new lease thereon on the same terms. Sentáis at $125 per month had been paid by all tenants to the executor and the city of Los Angeles up to March 2, 1936. No rental in excess of $80 per month was paid by Bay McMurray or any one of the lessees or assignees subsequent to March 2, 1936. On July 5, 1935, and prior to the expiration of the