Frink v. Le Roy

49 Cal. 314 | Cal. | 1874

By the Court:

The action is ejectment, and the title of the plaintiff is derived from one Philips, who, while the owner of the premises, executed and delivered to the defendant a mortgage thereof to secure a debt owing by him to the defendant. The mortgage was subsequently foreclosed by decree, but no sale of the mortgaged premises was had. Philips was indulged with further time to pay the mortgage debt, and the parties accordingly entered into a written agreement to the effect that the order of sale should not issue for the period of eighteen months, and, by a subsequent agreement in writing, a further delay of twelve months was allowed. It was further agreed in writing between the parties that the defendant Le Roy should enter into the possession and control of the premises, collect the rents and apply them to the satisfaction of the decree. Le Roy accordingly entered, and has since remained in possession, pursuant to the agreement, and, after applying the rents, a large balance of the amount named in the decree remained unsatisfied at the time the present action was brought by the plaintiff, who had, in the meantime, received from Phillips a conveyance of the premises.

1. There is no doubt that during the periods of time limited in the agreements between the parties, those agreements operated an assignment to the defendant of the rents to be collected during the designated periods, so far as they might be necessary to satisfy the decree, and that during those periods unless the mortgage debt had in the meantime been paid, a Court of equity would not have permitted Philips to have broken his agreement with Le Roy, by the assertion of his legal title, or the disturbance of the latter in his possession taken under the agreement.

2. Nor do we see that the circumstance that the periods of time stipulated in the agreements themselves have long since expired can operate to change the relations of the parties, or render it more consonant to the principles of equity that Le Roy should now be turned out of possession, the debt being still unpaid.

Though no formal renewal of the agreement was made, the parties had acquiesced in its subsequent continuance to the time that the present action was brought. The statute of limitations can have no application to the rights of the parties in such a case.

It would hardly be claimed, for instance, that Philips, or the plaintiff as his grantee, would be barred of the right to resume the possession upon payment or tender of the balance of the mortgage debt, and it is not perceived that the equity of Le Roy, upon the other hand, to be maintained in possession until satisfaction of his debt, is less cogent, or has been lost, from the fact that for upwards of ten years he has been in the actual possession of which he is now sought to be deprived.

Judgment and order denying a new trial reversed, and cause remanded for a new trial. Remittitur forthwith.