De Castro v. Clarke

By the Court, Currey, J. The plaintiff sued the defendants—nine in number—upon an undertaking bearing date the 19th' of June, 1863, by which they jointly and severally undertook and promised that if the judgment rendered in the District Court of the Third Judicial District in and for the County of Santa Clara, in the action of De Castro v. Richardson and others, should be affirmed on appeal by the Supreme Court, the appellants therein would pay the value of the use and occupation of the premises recovered in that action from the date of said undertaking O until the possession of the premises should be delivered pursuant to such judgment. The undertaking of «the defendants [14]was limited to four thousand dollars. Six of the defendants in this action were appellants in the case of Richardson. The other defendants herein were their sureties in the'undertaking on which this action was brought. The judgment in Richardson’s case was affirmed by the Supreme Court (25 Cal. 49,) but by reason of the appeal execution on the judgment was stayed from the 19th of June, 1863, to the 9th of September, 1864; after which this action was commenced to recover four thousand dollars for the use and occupation of the premises pending the appeal.

The defendants answered, denying each and every allegation of the complaint; and for a special defense they answered that pending the appeal the plaintiff conveyed by deed a large portion of the premises described to Henry Ringstorff, one of the defendants in the judgment mentioned in the complaint. That during the same period “ the interest and estate of the plaintiff in another large portion of the premises came by adverse mesne conveyances to the assigns and successors in interest of Charles Rice and Minerva Rice, defendants in the same judgmentand that during the same period the “ plaintiff leased divers large portions of said premises respectively to Caleb B. Crews, Matthew W. Dixon and Andrew Whisman, for terms then commenced and not yet expired.” The defendants then averred that by reason thereof, the plaintiff did not and could not take possession of the premises under the judgment affirmed. To this special defense the plaintiff demurred, on the around that facts therein set forth were insufficient to constitute a defense to the action on the undertaking, and the District Court being of that opinion sustained the demurrer. The cause was then tried' by the Court without a jury. A witness was examined respecting the value of the use and occupation of thé premises by the defendants in the Richardson case, pending the appeal therein. From the evidence in the case the Court found that fourteen of the defendants in the Richardson case, and those' who entered upon the property under them, continued in the occupation of the premises described from the 19th of June, 1863, to the 1st of July,