244 P. 330 | Cal. | 1926
This is an action in ejectment and for the value of the use and possession of certain real property in the city of Sacramento. The plaintiff had judgment and the defendants appeal under the alternative method.
The appellants are husband and wife. The respondent was at one time the wife of Louis DeBock, a brother of the appellant August DeBock. In an action for damages for alienation of affections commenced and first tried in Placer County and tried the second time in the county of Sacramento, the respondent, on November 18, 1916, recovered a judgment against the appellants for five thousand dollars and costs. On appeal said judgment was affirmed (DeBock v. DeBock,
The appellant August DeBock was a railroad conductor, operating on a division between Roseville, California, and Sparks, Nevada. In 1913 and 1914 he and his wife rented and occupied a furnished cabin in Roseville. In July, 1914, they purchased a lot in Roseville on which they constructed a house. As soon as said house was completed, in 1915, they occupied and continued to occupy the same as their home until December, 1915, when they sold it to a Mr. Prouty. On August 3, 1911, the appellant August DeBock registered as a voter in Sacramento County and gave his residence as 2409 P Street. His next registration was on August 3, 1912, at which time he gave his residence as No. 2415 P Street, which was the home of his wife's mother and adjoined the premises in controversy. On March 11, 1914, he registered as a voter in Placer County and gave his residence *180 as Roseville. This registration was canceled and he re-registered in Sacramento on December 16, 1915, nearly three months after the recording of the homestead declaration. In November, 1915, he was a witness in the superior court in Placer County on the first trial of the former action and he there testified that he then resided at Roseville and that he had been a resident of Roseville for three years.
On March 28, 1912, and on January 7, 1914, the defendant Clara E. DeBock registered as a voter in Sacramento and stated her residence as No. 2415 P Street. On November 16, 1911, she subscribed for a telephone and had the same installed and listed in her name at 2415 P Street and such listing remained up to the time of trial of this action. At no time since 1911 did the appellants or either of them register as residing at No. 2409 P Street. In the deed to the lot on which the appellants built their new home in Roseville appellant Clara E. DeBock was named as the grantee "of Roseville" and she personally filed the deed for record on November 2, 1914.
G.A. Eichelberger, a witness produced on behalf of respondent, testified that he occupied the lower flat with his family from March 15 until December 8, 1915; that from March 15 to some time in August, 1915, a family by the name of Strand occupied the upper flat exclusively, and that from the time the Strands moved out, in August, 1915, until December 8, 1915, the upper flat was wholly unoccupied. The testimony of this witness, together with the testimony of other witnesses produced on behalf of respondent, which need not be recited, and the admissions and declarations of the appellants, was sufficient evidence on which to base the finding of the court, as follows: "That neither on the 20th day of September, 1915, nor on the 21st day of September, 1915, nor at the time of the making or the execution or the filing of the declaration of homestead set out in and annexed to defendants' answer, were the defendants, or either of them, residing upon or occupying the premises described in plaintiff's complaint, or any part thereof; . . . that said real property is not, nor is any part thereof the homestead of the defendants or of either of them; and that at no time was said real property or any part thereof the homestead of the defendants or either of them." *181
The appellants contend that because of the nature of the occupation of the appellant August DeBock he was required to be absent from Sacramento, and they testified that at the time of the filing and recordation of the declaration of homestead they considered No. 2409 P Street as their home and intended to return to that place in seasons of repose. But the court was not bound to accept their testimony as to their intentions as conclusive. Concerning such evidence of intention this court said in the case of Tromans v. Mahlman,
Under date of April 8, 1909, the appellant Clara E. DeBock entered into an agreement with her mother, Mary E. Welch, wherein and whereby, in consideration of the execution and delivery of the deed of the same date by the said Mary E. Welch and her husband to said Clara E. DeBock conveying to the latter the property in question, it was provided that if at any time in the future the said Mary E. Welch should so desire she should have the right to occupy the lower flat with the proviso that the said Clara E. DeBock should have the benefit of all rentals from the whole of said building until all of the expenses of the erection of said building had been paid by her. The trial court awarded to the respondent, in addition to the right of possession, the value of the use and occupation of the entire property from the date of the issuance of the sheriff's deed on March 19, 1918. The appellants contend that the judgment herein must be reversed for the reason that the evidence shows that the foregoing agreement was still in force at the time of trial and that there was no authority on the part of the court to award to the respondent the value of the use and possession of the entire property during a period when Mary E. Welch was entitled to possession of the lower flat free of charge. The contention cannot be sustained. Section 427 of the Code of Civil Procedure provides: "The plaintiff may unite several causes of action in the same complaint, when they all arise out of: . . . 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; . . ." Under the permission of this section the respondent filed her complaint, wherein she alleged her title and right of possession under the sheriff's deed and damages on account of being deprived of the rents and profits. These allegations were denied by the answer, wherein the appellants also affirmatively alleged that continuously since the eighth day of April, 1909, the said Clara E. DeBock was the owner in fee of the said property and was in possession of the same *183
and that the respondent had no right, title, or interest therein. The court found the allegations of the complaint to be true and the allegations of the answer to be untrue. Assuming that the mother was in possession under the appellant Clara E. DeBock without the payment of rent during the period in controversy, or some part thereof, it was immaterial whether or to what extent said appellant was receiving rent, for when the respondent established her right of possession she was entitled to the rental value of the premises during the time she was unlawfully deprived of the same. (Love v. Shartzer,
The judgment is affirmed.
Seawell, J., Richards, J., Waste, C.J., Curtis, J., Lawlor, J., and Lennon, J., concurred.