Mahoney v. Alviso (1876) · DecisionDepot

Mahoney v. Alviso

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1876 No. No. 4781Published

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Holding. The court affirmed the judgment because the complaint failed to sufficiently allege that the rents in controversy accrued after the entry of the partition decree, which was essential to the plaintiffs' claim.

Issues

Whether the complaint sufficiently alleged that the rents in controversy accrued after the entry of the partition decree.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“There is no such averment found in the complaint in direct terms; nor do its allegations, fairly construed, amount to such an averment.”

Synopsis

Effect of Dkcbee in Pabtition on Bjsnt;s.—If one of several tenants in common leases a portion of the common property to a tenant, and after the lease is made suit for partition is commenced and a decree entered which assigns to another of the tenants in common the land leased, the decree does not pass to the latter the rent of the leased land unless such rent falls due after the decree is made.

By the Court: It should have been stated in the complaint, if such were the fact, that the rents in controversy accrued subsequently [442]to the entry of the decree in partition, for it is upon this proposition, in the main, that the right of the plaintiffs to those rents would rest. There is no such averment found in the complaint in direct terms; nor do its allegations, fairly construed, amount to such an averment.

Judgment affirmed.

Mahoney v. Alviso

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