Savings & Loan Society v. Gerichten

Thobnton, J. J.This action is brought to recover of defendant the value of the use and occupation of certain real estate situate in the city of San Diego, for a period extending from the 17th day of November, 1880, to the 17th day of May, 1881, and also for a period commencing with the day last named, and ending on the 17th day of August, 1881. Judgment was rendered for the defendant. There was a motion for a new trial by plaintiff, and an order denying it. Thereupon plaintiff appealed from the judgment and order.

The facts of the case as found by the court below are these: On the 2d day of August, 1880, a judgment was rendered in the Superior Court for the city and county of San Francisco, in an action brought by the plaintiff herein against A. E. Horton and others, defendants, among whom was the defendant herein, in favor of plaintiff and against the defendants for the foreclosure of a mortgage made by Horton in favor of plaintiff on the 8th day of December, 1873, upon the property described in the complaint herein. On the 19th day of October, 1880, an execution was issued on the judgment, and placed in the hands of the sheriff of San Diego County, who by virtue of the same, on the 17th day of November, 1880, sold, according to law, the property above mentioned to the plaintiff, gave it a certificate of sale therefor, and on the next day filed a duplicate of the certificate in the recorder’s office of the county just named. The defendant had notice of this judgment and sale. He used and occupied the premises from the 17th of November above mentioned to the 17th of May, 1881, which use the court finds was of the value of fifty dollars per month. The court also finds that plaintiff was the owner of the property from the 17th of May, 1881, to [522]the 18th of August, 1881 (having become such by the acquisition of the sheriff’s deed on the sale above mentioned, as shown " by the testimony), and that during said period last named, the defendant occupied the premises by permission of the plaintiff, and that the use of the property during such period was worth three hundred dollars; that Horton was the owner of the property from the 23d of December, 1876, to the 17th of May, 1880; that on the said 23d day of December he leased the same to the defendant for the period of two years thereafter, at the rental of fifty dollars per month, and on the 14th of April, 1880, he extended this lease to the 1st of May, 1881, on the same terms, and' received the rents for the property up to the day last named; that on the 30th of July, 1879, defendant notified the plaintiff that the buildings on the property had become dilapitated and that many necessary and permanent repairs were necessary to be made to preserve the building (the Horton House) on the property and make it habitable, and demanded of the plaintiff that it should make such repairs.