7 Cal. 43 | Cal. | 1857
after stating the facts, delivered the opinion of the Court—Murray, C. J., and Terry, J., concurring.
The only question presented, regards the construction of the two hundred and thirty-sixth section of the Practice Act. In the case of Middleton v. Guy, this Court decided, that the purchaser could not obtain possession of the premises from the judgment-debtor, until the expiration of the time allowed for a redemption. There is nothing in that decision, however, that affects the present case.
That the purchaser is entitled to the rents from the sale, is not disputed, but it is insisted—First, that his remedy is against the judgment-debtor; and—Second, that conceding the tenant may be sued by the purchaser, no suit can be brought until the time for redemption expires.
As to the question, whether the words “ tenant-in-possession,” would include the judgment-debtor, in a case where he has possession at the time of sale, so as to make him responsible for use and occupation, it is unnecessary to determine. But we think it clear, that Lathrop was responsible to the plaintiff for the rents, in the way he would have been to the judgment-debtor had no sale have been made, and that, consequently, the plaintiff could sue for the rent, as often as it fell due, under the terms of lease existing when he became purchaser. The effect of the sale was equivalent to an assignment of the lease for the time.
The judgment of the District Court is therefore reversed, and that Court will enter judgment for the plaintiff, in accordance with this opinion.
