Wise v. Walker

The Court. The judgment in this case was affirmed on December 26, 1888. A rehearing was afterward granted, and the case has been reargued and submitted.

The reargument and reconsideration of questions involved have convinced us that the conclusion reached on the former hearing is correct, and the judgment is affirmed, for the reasons stated in the opinion herein, filed December 26,1888.

The following is the opinion above referred to rendered in Bank on the 26th of December, 1888:—

Foote, C. Walker and Menzies, the defendants in this action, held a first mortgage executed by one Buffandeau upon a certain parcel of land in the city of San Francisco. John H. Wise, the plaintiff here, and one [12]Denigan held a second mortgage upon the same property.

Walker and Menzies brought a foreclosure suit, and made Wise and Denigan parties defendant. While that suit was pending, and after service upon him of summons, Wise, under a bankrupt sale, bought whatever "title Buffandeau had. Walker and Menzies recovered judgment, had a foreclosure of the mortgage, the property was sold under the decree therein rendered, and a sheriff’s deed was executed and delivered to them.

After judgment, but before the sale under the decree, -a receiver was appointed, who collected the accruing rents from the property until the sheriff’s deed was given, when an account of the receiver was filed, and upon the order of the court the amount shown to be due thereby was paid to Walker and Menzies on account of a deficiency of the money realized from the sale of the property to satisfy their judgment. After that time Walker and Menzies collected the rents, and continued to do so until the trial of the present action.

An appeal was taken from the judgment of foreclosure, which was reversed by the appellate court, a new trial was had, which resulted in a second judgment in favor of Walker and Menzies. Under that, a sale of the property was had, at which these parties again became the purchasers.

On the second trial, upon an accounting before the court, Walker and Menzies had their mortgage debt credited by the amounts which they received from the receiver, and for all rents which they had collected up to the time of the trial. Wise contends that he is entitled to maintain this action against them for the amount of tfie rents which they have thus collected, claiming that inasmuch as he bought jfche mortgagor Buffandeau’s title to the property, he, Wise, was the owner thereof during the time the defendants collected the rents.