Gaskill v. Moore

Appeal from the Fourth Judicial District.

The facts in this case are fully stated in Gaskill v. Trainer etal., reported in 3 Cal. 334. The statement there given, together with that portion of the decree' of the Court specially excepted to, is all that is necessary to an understanding of the opinion of the Court.

The Court below, after finding the sum due on the mechanics’ lien, “finds that the plaintiff, Jacob Gaskill, holds a mechanic’s lien for the said sum, with interest and costs, as aforesaid, on the leasehold interest which the defendant, John W. Trainer, had July 1st, 1852, by virtue of a certain indenture of lease, bearing date May 10th, 1852, between Ezekiel J Moore, of the first part, and John W. Trainer, of the second part, in and' to the following described lands and premises, to wit (describing them): subject, nevertheless, to the conditions in the said indenture of lease contained; that the said leasehold interest is the residue and balance, from the 1st day of July aforesaid, of a term of five years, which term commenced June 10th, 1852, and will end June 1st, 1857. It is, *therefore, ordered, [234] adjudged and decreed, that the said leasehold interest be sold pursuant to law, to satisfy the said lien, and that the proceeds derived from such sale be paid into Court, subject to its further order.”

The defendant appealed from-this decree.

1. The decree does not define or ascertain the nature, -extent or condition of Trainer’s interest in the leasehold estate, which is to be subjected to Gaskill’s lien.

2. Gaskill had no lien, having acquiesced in the cancellation of Trainer’s lease, and having afterwards proceeded under Trainer as a contractor.

3. If Gaskill has a lien, it is, at best, but an equity, and to be enforced by proceedings analagous to those which obtain in courts of equity. It was established by the proof, that Moore had, in good faith, expended a large sum in erecting buildings on the premises, believing that the lease was terminated. It was error to subject the premises, including Moore’s buildings, to the plaintiff’s lien, without in any manner ascertaining or protecting Moore’s interest.

4. No rents have ever been paid to Moore, and if he is to lose his buildings and his lease, he is entitled to his rents. Before decreeing sale of the premises, the Court should have caused an account to be taken of the rents, and provided for their payment out of the proceeds of the sale. It was error to decree a sale without first ascertaining the precise nature of the interest to be sold, so that purchasers might know what they were buying, and what responsibilities they would incur.

6. The decree does not conform to the opinion heretofore rendered by the Supreme Court in this cause.