Walker v. McCusker

Belcher, C. C. Franklin McCusker executed a mortgage upon certain real property to the Bank of Watson-ville. The money being unpaid, the bank foreclosed its mortgage, making, the defendant a party to the action, and under the decree obtained, caused the mortgaged property to be sold. The plaintiff was the purchaser at the sale, and in due time obtained a sheriff’s deed. The purchase was, however, not made for himself, but at the request and for the sole use and benefit of the bank. At the time of the sale, defendant was the owner in fee and in possession of the property, and she retained the exclusive possession of it until the sheriff’s deed was executed.

This action was commenced to recover from the defendant, as tenant in possession, the value-of the use and occupation of the property from the time of the sale [596]until the expiration of the time allowed for redemption. In the court below the plaintiff recovered judgment, and from that judgment the defendent has appealed.

1. In this state the purchaser of real property at a sheriff’s sale from the time of the sale until a redemption, and a redemptioner from the time of his redemption

, until another redemption, is entitled to receive from the \\tenant in possession the rents of the property sold, or the value of the use and occupation thereof. (Code Civ. Proc., sec. 707.) This right on the part of the purchaser to receive the rents and profits, or value of the use and occupation of the property sold, is not limited |o_ cases where there has been a redemption. It begins | at the time of the purchase, and continues until a redempEtion is made, or, if there be no redemption, then until ||1 the time allowed for redemption has expired. Several |ii cases of this character have been maintained in this [¡court where there had been no redemption of the property. (Reynolds v. Lathrop, 7 Cal. 43; McDevitt v. Sullivan, 8 Cal. 592; Harris v. Reynolds, 13 Cal. 514; S. C., 73 Am. Dec. 600; Hill v. Taylor, 22 Cal. 191; Webster v. Cook, 38 Cal. 423.)

2. In Page v. Rogers, 31 Cal. 293, it was held that, during the period which elapses between the sale of land on execution and the expiration of the time for redemption, the statute regards the purchaser as the owner in equity of the land, subject only to the right of redemption, and gives him the rents and profits, or the value of the use and occupation,—in short, the entire beneficial interest, except the actual possession.