Fowler v. Lane Mortgage Co.

SHAW, J.

Basing his right so to do upon the provisions of section 707 of the Code of Civil Procedure, plaintiff, as the purchaser of a tract of land at judicial sale, brought this action to recover from defendant as tenant for the use and occupation of the same during the period fixed for the redemption thereof. He had judgment, from which defendant has appealed.

The complaint contains two counts, in one of which it is alleged that defendant as tenant was in possession and control of the land; and in the other, that O. T. Sutton farmed the same under an agreement to pay defendant for the use thereof a part of the crop, the value of which so paid was $1,965.47.

[67]

It appears from the pleadings, stipulation of facts, and meager evidence offered that on April 1, 1917, and at all times thereafter referred to, George L. Cooper was the owner of record of tract 58, township 13 south, range 15 east, S. B. M., in Imperial County, subject to a deed of trust whereby the same was conveyed to Los Angeles Trust

&

Savings Bank to secure the payment of a loan made to him by Lane Mortgage Company; that on said date he executed a lease of said property to defendant, the term of which, as expressed therein, was to continue until such loan should be paid, and for which the lessee in good faith paid a full and adequate rental in advance for the entire term. The lease was not recorded. On January 22, 1918, George J. Fowler and his coplaintiffs, in an action based upon a demand that arose after the execution of the lease and brought in the superior court of San Bernardino County, obtained a money judgment against Cooper upon which an execution was issued to the sheriff of Imperial County under and by virtue of which he levied upon all interest of Cooper in the land in question, and on the fourth day of June, 1918, sold the same to plaintiff George J. Fowler, to whom on said date he issued a certificate of purchase, a duplicate of which was filed for record on August 7, 1918. No redemption was made of the property within the year allowed therefor, during all of which time and prior thereto it was in the open and actual possession and occupancy of one O. T. Sutton as a subtenant of defendant, to whom, between June 4 and August 1, 1919, he paid as rent for the use thereof, for the year immediately following date of sale to plaintiff, the sum of $1,965.47.