Phillips v. Pacific Land & Cattle Co.

MARKS, J.

Respondent instituted this action to recover the sum of $2,000 for the use of pasturage on property which he owned in Imperial County. The case was tried before a jury. The court gave a peremptory instruction to return a verdict in favor of respondent in the sum of

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$928.20, upon which verdict the judgment was entered. From this judgment an appeal was taken.

At the time of the trial the attorneys for the respective parties entered into a written stipulation by the terms of which they agreed upon all material facts of the case except one upon which evidence was introduced. From this stipulation it appears that on and prior to August 2, 1927, the Imperial Holdings Company, Incorporated, was the owner and in possession of the land upon which pasturage was had by the cattle of appellant. Prior to this date the above-named corporation had executed its promissory notes to respondent secured by deeds of trust upon this property. These deeds of trust were duly recorded at some time prior to August 2, 1927. On February 14, 1928, the Imperial Holdings Company was in default in its payments of principal and interest on these promissory notes and respondent recorded notices of default under the trust deeds and took the necessary steps to foreclose the same. The real property was sold to him on June 11, 1928, under the second deed of trust. The sale under the first deed of trust was postponed by the trustee and was not held. On June 18, 1928, the trustee made and executed his deed under such sale conveying the real property to respondent. This deed was accepted by him before June 27, 1928, and was duly recorded on that date. It was further stipulated that the sale was held and conducted in all respects according to law and that the trustee’s deed conveyed the title of the real property to respondent.

It further appears from the stipulation that the real property in question was planted to alfalfa. On August 2, 1927, appellant, with the consent and under an agreement with the Imperial Holdings Company, went into possession of the real property and pastured stock thereon, the value of the pasturage to be credited upon a former and concurrently accruing indebtedness from the Imperial Holdings Company to appellant. Appellant advanced the total sum of $14,115.93 to the Imperial Holdings Company, and the value of the pasturage used to and including the eleventh day of June, 1928, was $12,290.91, leaving a balance of $1825.02 of the indebtedness unpaid on this last date.