130 P. 12 | Cal. | 1913
The action was brought by Charles P. Nathan against George E. Dierssen to recover the rents, issues, and profits of a tract of land in Yolo County, alleged to have been unlawfully withheld from plaintiff by defendant. Pending the action the original defendant died and Eda B. Dierssen, as executrix of his last will, was substituted in his stead. A supplemental complaint alleged the presentation of a claim by the plaintiff to the executrix. Upon a trial without a jury, the court rendered judgment in favor of the plaintiff for $2,592.75, and from this judgment and an order denying her motion for a new trial the defendant appeals.
The present action was commenced in May, 1902. It appears from the bill of exceptions that in July, 1898, the plaintiff Nathan had commenced a former action against Dierssen and another to quiet his title to the land in question, and for restitution of the possession thereof, and that on April 22, 1902, a judgment in accordance with plaintiff's prayer had been entered in said action. An appeal was taken to this court, and the judgment was affirmed on the twenty-third day of February, 1905. (Nathan v.Dierssen,
The appellant contends that, under this state of facts, the plaintiff was not entitled to maintain an action for rents and profits, for the reason that he was not, at the date of the filing of his complaint, in possession of the land. It was without doubt the established rule at common law that an action against a wrongful disseisor for mesne profits could not be maintained except by a plaintiff who had regained actual possession of the premises (15 Cyc. 213, 215; Stancill v.Calvert,
The position of the respondent is, however, that the doctrine requiring a plaintiff before suing for mesne profits, to retake possession or to establish his right of possession by a judgment in ejectment has been abolished by the provisions of our codes, and that, in this state, the action may be maintained by any one who has wrongfully been kept out of a possession to which he was entitled. It is unnecessary to pass upon the merits of this broad contention. Whatever may be the right of one out of possession to sue for mesne profits alone without setting up possession or the recovery of judgment in ejectment, section 427 of the Code of Civil Procedure unquestionably authorizes a plaintiff unlawfully dispossessed to unite in one and the same action a claim "to recover specific real property" with one for "damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same." The appellant concedes that under this section, a demand for mesne profits may be enforced without prior possession or judgment in ejectment when the demand is made in the very action of ejectment itself.
We think the present action may properly be regarded as one for the recovery of possession, as well as for rents and profits, and that it therefore comes within the permissive provision of section 427 The complaint contains every allegation necessary in an action of ejectment. It alleges ownership in plaintiff, that defendant wrongfully entered and dispossessed him and that he still keeps him out of possession. No further averment was required. (Payne v. Treadwell,
The fact that no judgment for restitution was in fact given is of no consequence. There was no occasion for any such judgment in view of the fact that during the pendency of the action possession had been restored to the plaintiff. For the same reason the court was not required to make findings establishing the plaintiff's right to a restitution of possession. If the action was one in which, under the issues framed, a judgment for restitution and rents and profits might properly have been rendered, the fact that the plaintiff came into possession of the premises after the commencement of the action did not deprive him of his right to a judgment for mesne profits. (Crispen v.Hannovan,
The findings declared that the value of the rents, issues, and profits of the premises during the period of the withholding was $1,733.33. The court further found that the plaintiff was entitled to interest on this amount from the first day of November, 1902, the date of the restitution of the possession, to the date of judgment. The appellant contends that the allowance of interest was not justified. But the contrary has been directly held by this court. In Furlong v. Cooney, *612
We see no error in allowing evidence to show the rental value of the property. The appellant concedes that the damage in cases of this kind may be established either by showing the rents and profits actually received or by proving the annual rental value of the land. The latter course was the one followed here, and we think the testimony offered by plaintiff fairly tended to show the reasonable rental value. The answers of some witnesses with respect to this point are criticised, but the objections go rather to the weight of their testimony than to its admissibility.
The answer was filed June 19, 1902. The case was not tried until June 15, 1909. The defendant moved to dismiss the action upon the ground that five years had elapsed after the filing of defendant's answer. But section
Finally, the appellant contends that the judgment, being against the executrix upon a demand against the estate of her testator, should have been made payable in due course of administration. (Code Civ. Proc., sec. 1504.) This contention seems to be well founded, and the judgment will be modified accordingly.
The judgment is modified by adding thereto, after the words "as executrix of the last will and testament of George E. Dierssen," the words "the same to be paid in due course of administration of the estate of said decedent," and as so modified the judgment is affirmed.
The order denying a new trial is affirmed.
Shaw, J., and Angellotti, J., concurred.
*613Hearing in Bank denied.
