Title Insurance & Trust Co. v. Pfenninghausen

[656]

SHAW, J.

This is an appeal by plaintiff upon the judgment-roll from a judgment entered in favor of defendants.

As appears from the complaint, the causes of action stated therein was to recover for the use and occupation of certain lands of which plaintiff alleged it was at all times mentioned the owner and which defendants, with its consent, held and occupied for a period of two years from and after January 1, 1917.

Appellants’ contention is that the findings are insufficient to support the judgment. The material facts appearing therefrom are, that on January 13, 1917, at a sale on mortgage foreclosure proceedings, the plaintiff bought in and became the owner and holder of a certificate of sale to the land in question, upon the surrender of which certificate it, on January 21, 1918, received a deed to the property, and ever since said date plaintiff had been the owner of the property; that Rogers Development Company was, prior to the sale upon foreclosure of the mortgage thereon, in which proceedings the title thereto was acquired by plaintiff, the owner thereof, and on October 1, 1916, leased the same to defendants for the term of one year for one-fourth of the crop produced thereon, and thereafter, without demand for possession or notice to quit, defendants continued in possession for the year, which expired on October 1, 1918, the effect of which, as provided in section 1161 of the Code of Civil Procedure, was to renew the lease upon the same terms; “that on October 1, 1917, defendants not having received or been given any notice of the claim or claims, if any, of said Title Insurance and Trust Company to the rent or any portion thereof, . . . for the year ending October 1, 1917,” thereupon paid the same to Rogers Development Company; that in payment of the rent due for the year ending October 1, 1918, they set aside one-fourth of the crop grown upon the land and left the same thereon as rental of said premises, of which fact they notified one Thomas F. Joyce, who was the duly authorized agent of plaintiff.

From these facts the court, as a matter of law, concluded that defendants were not indebted to plaintiff in any sum whatsoever.

That defendants had the use and occupation of the land from the time of the issuance of the certificate of sale of