Harris v. Foster

De Haven, J. On March 12, 1888, L. D. Stone and his daughter, Harriet, each owned an undivided half of the Sisquoc rancho, in Santa Barbara County. Upon that day the father mortgaged his interest therein to the plaintiff in this action. In January, 1890, the plaintiff commenced an action to foreclose this mortgage, and at the same time filed and recorded a notice of the pendency thereof. Stone was thereafter declared insolvent, and one Bush was appointed his assignee, and as such was made a party to the foreclosure suit. Judgment of foreclosure was entered in that action September 1,1890, and two days thereafter, Bush, the assignee of Stone, and F. W. Burke, as the guardian of Stone’s daughter, Harriet, executed to the defendant a lease of lots 4 and 6 of the Sisquoc ranch, giving him the right to pasture his stock thereon from that date until January 1, 1891, and the defendant went into possession under his lease, paying the rent in advance in accordance with its terms, and occupied the premises until February 1, 1891, and thereafter, until April 1,1891, under an agreement made with the guardian of Harriet Stone, as to her undivided interest therein. On October 6,1890, the land described in the mortgage made by Stone to the plaintiff was sold under the judgment of foreclosure, and the plaintiff became the purchaser at such sale, and as there was a fail-[294]lire to redeem, from this sale, he received the sheriff’s deed therefor April 14, 1891.

This action was brought to recover from the defendant, as tenant in possession, one half the value of the use and occupation of the property from the date of the sale under the judgment of foreclosure until April 1, 18917

The court below found the facts as above stated, and gave judgment in favor of plaintiff for one half the value of the use and occupation of the land from the date of his purchase until February 1,1891, the value of its use during the time it was occupied by defendant under the lease made to him on September 3, 1890, by the assignee of Stone and the guardian of Harriet Stone, being the amount reserved in that lease. The defendant appeals, and claims that the findings do not sustain the judgment appealed from.

1. The defendant contends that as he leased the land before it was purchased by the plaintiff at the foreclosure sale, and paid to the then owners the rent in advance for the whole term, in accordance with the agreement contained in the lease, that he is not liable to the plaintiff, as successor in interest of one of his lessors, for any portion of the value of the use and occupation of the premises under that lease; and to sustain this position defendant cites section 1111 of the Civil Code, which is as follows: —