Bank of America National Trust & Savings Ass'n v. McLaughlin

SPENCE, J. In this unlawful detainer action, the trial court entered judgment in favor of plaintiff. Thereafter [416]defendants appealed but the execution of the judgment was not stayed. During the pendency of the appeal, certain property was sold under execution and plaintiff became the purchaser. The proceeds of the sale, amounting to approximately $3,100, were paid to plaintiff. Thereafter the judgment of the trial court was reversed with directions to enter judgment in favor of defendants. (Bank of America Nat. T. & S. Assn. v. McLaughlin, 22 Cal. App. (2d) 411 [71 Pac. (2d) 291, 72 Pac. (2d) 554].) Defendants then made a motion for restitution of the proceeds of the execution sale. The trial court made its order denying said motion and defendants have appealed from said order.

The background of this litigation is fully set forth in Bank of America Nat. T. & S. Assn. v. McLaughlin, supra. The first unlawful detainer action was brought by plaintiff against defendants in 1932. ' The present action was brought in 1933. In the first action defendants alleged in their answer that they had the right to possession by virtue of a seven-year oral lease entered into on December 1, 1931, and by virtue of their compliance with all the terms of said lease. They further alleged facts claimed to be sufficient to estop plaintiff from setting up the statute of frauds. The first action was tried by a jury and resulted in a judgment in favor of defendants. No appeal was taken and that judgment became final prior to the time that the present action was commenced. In the present action, defendants set up the same defenses and also alleged that the final judgment in the first action was a bar to the present action. The trial court found against the plea in bar and entered its judgment in favor of plaintiff. The appellate court held that said finding against the plea in bar was erroneous and reversed the judgment with directions. (Bank of America Nat. T. & S. Assn. v. McLaughlin, supra.)

The material provisions of the lease alleged by defendants were that it was for a term of seven years commencing on December 1, 1931; that defendants were to plant crops on the tillable portion of the land and were to care for and to harvest said crops at their own expense; and that as rental, defendants were to deliver to plaintiff at the Southern Pacific Milling Company’s warehouse at San Ardo one-fourth of the crops so produced.

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