Casey v. Doherty

California Court of Appeal Aug 6, 1931 No. Docket No. 470.Published

Before: Allen

AI Brief

AI-generated · verify before citing

Holding. A receiver in a mortgage foreclosure proceeding is not entitled to rents or profits from the mortgaged property that were earned and disposed of by the mortgagor prior to the receiver's appointment. Consequently, a complaint alleging such facts and stating that the plaintiff obtained court permission to sue the receiver is sufficient to withstand a demurrer.

Issues

Was the receiver entitled to money derived from pasturage removed from the mortgaged premises prior to the receiver's appointment?
Did the plaintiff have the legal capacity to sue the receiver?

Disposition. reversed

Quotations verified verbatim against the opinion

“The receiver was not legally authorized to demand and receive the proceeds derived from the sale of fruit taken by the mortgagor from the mortgaged premises prior to the appointment of a receiver.”

“It is alleged in the complaint that the cause of action was assigned to plaintiff, and that permission to sue the receiver was, before the filing of the complaint, first had and obtained.”

“From the foregoing it must be held that the trial court was in error in sustaining the demurrer to the complaint.”

ALLEN, J.,

pro tem.

The plaintiff filed his second amended complaint in the court below alleging two causes of action, both in substance that in the month of October, 1929, one Edwin S. Pascoe was the owner of certain real property in Imperial County and entitled to the rents

[43]

and profits thereof; that during the month of November, 1929, the defendant was appointed receiver in a certain mortgage foreclosure proceeding against the property; that during the month of October, 1929, one George Nowlin became indebted to Pascoe in the sum of $520 for pasturage removed from said premises during said month; that Nowlin paid said sum to the defendant receiver after his appointment; that thereafter about November 22, 1929, Pascoe assigned his rights in said sum to the plaintiff herein, who made demand for payment from said receiver which was refused, whereupon plaintiff filed his complaint praying for judgment. To this complaint defendant filed a general and special demurrer which was by the court sustained without leave to amend. Thereupon judgment was entered for defendant, from which judgment plaintiff appeals.

The two points raised by the demurrer are, first: Was the receiver in the mortgage action, and not plaintiff’s assignor, entitled to the money set out in the complaint as part of the rents, issues and profits of the real property therein involved?

It is the law of this state that the mortgagee not in possession is not entitled to the rents, issues and profits of the premises where the mortgagor remained in possession of the mortgaged premises. In the case of

Simpson

Ferguson,

112 Cal. 180, 188 [53 Am. St. Rep. 201, 40 Pac. 104, 44 Pac. 484, 486], it is stated: “The mortgagor being in possession of the land, and entitled as of right to the crops grown thereon, it was competent for him to sell or mortgage, or otherwise dispose of them, and convey good title thereto, as against the mortgagee of the land or his assigns, at any time prior to the foreclosure of the latter’s mortgage.” In

Casey v. Doherty

AI Brief

ALLEN, J.,

More from California Court of Appeal

Related research

AI Brief