Malone v. Roy

McFARLAND, J. This is an action to foreclose a mortgage upon certain lands executed by defendant.to the plaintiff. Tbe plaintiff in bis complaint admits that be has been in possession of tbe mortgaged premises from about the fourth day of January, 1888, to the commencement of the suit on June 27, 1892, and admits that be is accountable to tbe defendant for tbe rents and profits of the mortgaged premises during that time. Judgment was rendered for plaintiff foreclosing the mortgage for a certain amount of money found to be due from defendant to plaintiff thereon, after an accounting in which plaintiff is charged with a certain amount as tbe rental value of tbe premises while in tbe plaintiffs possession, and also with another certain amount of money for tbe value of certain timber growing upon the premises which bad been sold by tbe plaintiff during bis occupancy. De[513]fendant appeals from tbe judgment and from an order denying bis motion for a new trial.

There are two main points made on the appeal, involving the correctness of the finding of the court as to the rental value and as to the value of the timber sold—the appellant insisting that the amounts found by the court as to said two items were too small.

The great mass of the evidence in the case was directed to the value of the said timber. The court found the value to be five hundred dollars, and the appellant claims that it should have been seven hundred and forty-two dollars. We do not deem it necessary to here discuss the testimony upon that point in detail; it is sufficient to say that the finding of the court as to the value of the timber is sufficiently supported by the evidence to put it beyond disturbance by this court.

As to the rental value, the averment of the complaint is as follows: “That the rents and profits of the' said premises for the time plaintiff has had and received the same does not exceed three hundred dollars for the first year, four hundred and fifty dollars for the second year, and five hundred dollars per annum for the remaining portion of the time which plaintiff has possessed the same.” The defendant in his answer denies that the rents and profits do not exceed the amounts named in the complaint, and avers that the rental value of the land was and is fifteen hundred dollars a year. The case was pending for a number of years, during which time plaintiff remained in possession, and in a supplemental answer defendant avers that since the commencement of the suit the rental value was and is the sum of nine hundred dollars per year. The court found that the rental value during the first year of plaintiff’s occupancy was three hundred and sixty dollars; that for the second year such value was also three hundred and sixty dollars, and for the balance of the time down to the commencement of the action at the rate of three hundred dollars a year. There was a great deal of conflicting evidence as to this rental value for these years; and we could not say that the findings of the court upon the subject were not sustained by the evidence. But the complaint clearly admits that the rental value for the second year was four hundred and fifty dollars, and for