2 P.2d 495 | Cal. Ct. App. | 1931
The plaintiff filed his second amended complaint in the court below alleging two causes of action, both in substance that in the month of October, 1929, one Edwin S. Pascoe was the owner of certain real property in Imperial County and entitled to the rents *43 and profits thereof; that during the month of November, 1929, the defendant was appointed receiver in a certain mortgage foreclosure proceeding against the property; that during the month of October, 1929, one George Nowlin became indebted to Pascoe in the sum of $520 for pasturage removed from said premises during said month; that Nowlin paid said sum to the defendant receiver after his appointment; that thereafter about November 22, 1929, Pascoe assigned his rights in said sum to the plaintiff herein, who made demand for payment from said receiver which was refused, whereupon plaintiff filed his complaint praying for judgment. To this complaint defendant filed a general and special demurrer which was by the court sustained without leave to amend. Thereupon judgment was entered for defendant, from which judgment plaintiff appeals.
The two points raised by the demurrer are, first: Was the receiver in the mortgage action, and not plaintiff's assignor, entitled to the money set out in the complaint as part of the rents, issues and profits of the real property therein involved?
[1] It is the law of this state that the mortgagee not in possession is not entitled to the rents, issues and profits of the premises where the mortgagor remained in possession of the mortgaged premises. In the case of Simpson v. Ferguson,
The complaint alleges the taking and disposing of the pasturage prior to the appointment of a receiver, which was required to be so alleged by plaintiff in order to state a cause of action.
[2] The next question raised in the appeal is: Has the plaintiff capacity to sue. In order to sue a receiver, permission must be had from the court making the appointment. It is alleged in the complaint that the cause of action was assigned to plaintiff, and that permission to sue the receiver was, before the filing of the complaint, first had and obtained. This would seem to the court to be sufficient. Permission was all that was required, and once obtained, plaintiff was then permitted to proceed with his action.
This court fails to see any reason why a third person cannot sue for property wrongfully taken by a receiver, or wrongfully withheld. (See Fidelity Sav. Loan Assn. v. Citizens' Trust Sav. Bank,
[3] It was incumbent on plaintiff to allege the ultimate facts of his cause of action, which facts, where proven, would entitle him to recover. This we think plaintiff did.
From the foregoing it must be held that the trial court was in error in sustaining the demurrer to the complaint.
Judgment reversed with instructions to overrule the demurrer and proceed accordingly.
Barnard, P.J., and Jennings, J., concurred.