25 P.2d 982 | Cal. | 1933
In this cause, plaintiff, a personal representative of the mortgagee, by due proceedings in foreclosure, caused to be sold at a regular sale the premises in dispute and became the purchaser thereof on behalf of his testate on October 29, 1932, and the time for redemption will expire on October 29, 1933. Appellant Nicoll holds the legal title to said property through mesne conveyances from the original mortgagor. She was the sole defendant in the foreclosure proceeding. The property involved is in San Diego and consists of a large lot on which are located some seven or eight tenements which now are and have heretofore been rented to tenants of moderate means. Since the foreclosure and sale a continuous scramble for rents from these tenants has been carried on by plaintiff on the one hand and defendant on the other, the latter being guided *227 and controlled by her attorney, defendant Staley. The present proceedings are the outgrowth of this controversy.
Plaintiff sued for an injunction restraining interference by defendants in its campaign to collect and appropriate said rents. Defendant Nicoll demurred to the complaint on general grounds. Her demurrer was overruled and, failing to ask permission to answer, that right was cut off, followed by the granting of a permanent injunction restraining her from in anywise interfering with the collection of these rents and also from harassing or annoying said tenants.
Defendant Staley also demurred to the complaint. His demurrer was overruled. He later answered. A demurrer to his answer and a motion to strike out certain allegations thereof were then interposed; the demurrer was sustained and the motion granted. Later a final decree, similar to the one against defendant Nicoll, was duly entered against this defendant also. Both these defendants filed notices of appeal from the said decrees and orders.
[1] The basic question is: What are the rights of the parties in view of the provision of section
[3] Neither is there a sufficient showing of the commission of waste because, but for the interference of plaintiffs, defendant would have continued in possession of the property in the same way and manner in which she had theretofore held it. (Sec. 706, Code Civ. Proc.) It is true that plaintiff alleges that it was in possession of the property, but the facts show that this possession was at most merely constructive and, moreover, defendant Staley put in issue, by his answer, the question of possession by his denial of possession in plaintiff.
The judgment as to both defendants is reversed.
Curtis, J., Thompson, J., Waste, C.J., and Seawell, J., concurred.