Salveter v. Salveter

SPENCE, J.

Plaintiff was the judgment debtor and defendant was the judgment creditor and purchaser on an

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execution sale. Plaintiff brought this action under section 707 of the Code of Civil Procedure for an accounting of the rents received by defendant subsequent to the sale. This appeal is taken on the judgment-roll from the judgment of dismissal entered after the demurrer to plaintiff’s second amended complaint had been sustained without leave to amend.

Said section 707 of the Code of Civil Procedure provides in part that after a sale on execution, the purchaser is entitled to receive the rents but that the amount of such rents “shall be a credit on the redemption money to be paid”; that if the judgment debtor, before the expiration of the time. for redemption, demands in writing of the purchaser a “written and verified statement of the amounts of such rents” received, the period of redemption is extended five days after “such sworn statement is given”; and that if the purchaser for a period of one month from and after the demand fails or refuses “to give such statement”, the debtor may bring an action “to compel an accounting” of such rents and the right of redemption is extended until fifteen days after the final determination of such action.

Plaintiff’s complaint was in two counts which were quite similar except in one particular. We shall first briefly set forth the allegations of the second count. It was there alleged that plaintiff, and defendant were formerly husband and wife and that a divorce action was instituted by defendant against plaintiff in 1925; that in said action defendant obtained an order requiring plaintiff to pay to defendant $20 per week for the support of herself and two minor children; that thereafter an interlocutory and a final decree of divorce were entered; that by the terms thereof a 99-year leasehold interest in certain real property was adjudged to be the community property of the parties, but that the court did not make any division or disposition thereof; that subsequently, upon affidavit of defendant herein showing an unpaid balance of $2,068 upon the above-mentioned order, the court ordered a writ of execution to issue; that said writ was issued and on July 15, 1929, all of the right, title and interest of plaintiff in and to said leasehold interest was sold on execution to defendant for the sum of $1,000; that defendant has been at all times since