Bradner v. Noesen

California Court of Appeal May 25, 1932 No. Docket No. 4560.Published

Before: Jamison

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Holding. The court held that the appointment of a receiver at the request of a third party, rather than the landlord, did not constitute an eviction of the lessees, and that the lessor was entitled to recover unpaid rent and foreclose on the mortgage despite the invalidity of a liquidated damages clause. The judgment was modified to remove the erroneous award of damages for the remainder of the lease term.

Issues

Whether the appointment of a receiver at the request of a third party constitutes an eviction of the lessees, relieving them of rent obligations.
Whether a note and mortgage executed as security for a lease may be foreclosed upon default of rent payments.
Whether the inclusion of an illegal liquidated damages clause in a lease precludes the recovery of actual unpaid rent.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“The court held in that case that the appointment of a receiver upon the application of the landlord, who took full control and possession of the premises, amounted to an eviction of the tenant”

“In the ease now under consideration the appointment of the receiver was made on the application of a third party and not by the landlord.”

JAMISON, J.,

pro tem.

This action was brought by plaintiffs to recover judgment for rent, to foreclose a chattel mortgage, and to recover damages.

The facts upon which this action is founded are as follows: Plaintiff M. L. Bradner leased an unfurnished apartment house, containing sixty rooms, in Long Beach to defendants J. W. Noesen and Madeline Noesen, his wife, for a period of five years, beginning December 1, 1924, at a rental of $36,000, payable monthly in advance in installments of $600 per month. At the date of the execution of said lease the said Noesens also executed a note for the sum of $5,000, due on or before five years after date, secured by a chattel mortgage on certain personal property. This note and mortgage were given as security for the fulfillment of the terms and conditions of the lease on the part of the lessees.

On September 17, 1925, the said Noesen and wife assigned said lease to defendant Gay, who assumed said note and mortgage, plaintiffs assenting to said assignment without releasing the assignor. Under the same conditions said lease was successively assigned to defendant Hallam and to defendants Hall and Oster, and upon each of said assignments the property covered by the said mortgage was sold and assigned to the assignee, and possession of said leased premises delivered.

Prior to the commencement of this action plaintiffs had filed three actions against defendants, two of which were for unpaid rent and the other an action in unlawful detainer. All of these actions were dismissed by plaintiffs before trial.

In the second action for rent defendant Hallam filed an answer and applied for the appointment of a receiver. One of the grounds for such appointment was that the defendants Hall and Oster, who were then in possession of said leased premises as assignees of the lease, were insolvent and were collecting the rents of same and instead of applying said

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rents to the payment of the rent accruing to the landlord were converting same to their own use and that said Hallam was liable to the landlord for the rent balled for by the lease.

No objections being made to this application, the court appointed one Anna Slevelan as such receiver. Said receiver " took possession of the apartment house on August 11, 1927, and thereafter continued in possession until July 1, 1928.

Bradner v. Noesen

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JAMISON, J.,

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