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Mau, Sadler & Co. v. Kearney

143 Cal. 506 Court Department Two. Decision date 1904-06-10 Docket S. F. No. 2701 English

Delivered by HENSHAW, J.

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p. 506
[S. F. No. 2701.
Department Two.
June 10, 1904.]
MAU, SADLER & CO., Respondent, v. JOSEPH G. KEARNEY, Appellant.

Headnote

Execution Sale of Parm—Time fob Redemption—Eights of Purchaser—Action for Receiver of Crops.—The purchaser of a farm sold under execution cannot, before the expiration of the time for redemption, bring an action to have a receiver appointed to harvest and sell the crop and apply the proceeds toward satisfaction of the judgment. The purchaser during such period is not entitled to the possession as against the judgment debtor or his successor in interest in possession.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. A. Belcher, Judge.
The facts are stated in the opinion of the court.
John H. Durst, for Appellant.
Erwin L. Sadler, for Respondent.

Plaintiff, having become the purchaser at execution sale of a farm belonging to defendant, which farm was encumbered by two mortgages, brought this independent action, seeking the appointment of a receiver to take and hold possession of, harvest, and sell the crop, and apply the proceeds in satisfaction of the judgment under which the execution sale was had.

The court granted the application for a receiver, and the single question involved in this appeal is whether the purchaser at such an execution sale is entitled to possession of the property sold, prior to the expiration of the period for redemption, as against the judgment debtor, or his successor in interest in possession. That he is not entitled to a receiver under these circumstances is squarely decided in West v. Conant, 100 Cal. 233 , approved in Scott v. Hotchkiss, 115 Cal. 94 , and again in Purser v. Cady, 120 Cal. 214 , in which last case it is declared that the right to possession is equally good in the successor in interest of the judgment debtor. The case of Hill v. Taylor, 22 Cal. 191 , relied upon by respondent, is

p. 507
an exceptional case, as pointed out in White v. White, 130 Cal. 599 .[1] The mortgage in Hill v. Taylor covered a mining claim, and the mortgagor, after the issuance of the certificate of sale, remained in possession and mined the gold in the claim. It was alleged in the complaint that if allowed to continue so to do the value of the property would be impaired, if not destroyed. This, coupled with an allegation of the insolvency of the mortgagor, made a clear case for the appointment of a receiver to prevent waste of the realty.

The judgment appealed from is therefore reversed.

McFarland, J., and Lorigan, J., concurred.

1 80 Am. St. Rep. 150 .

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