Two questions are presented by the case, and two only:
1. Is a purchaser of land at judicial sale, before the time of redemption has expired, enabled to bring suit for the rents during the six months?
2. The landlord having possession during the six months allowed to redeem, can his tenant, who has fully paid him the rent during the six months, be sued by the purchaser, and compelled to pay it over again?
Upon the first proposition, an examination of the Act, and the decisions of this Court, are conclusive. See Comp. Laws, Sec. 235, p. 563.
This section plainly contemplates an adverse possession to the purchaserduring the six months allowed for redemption. This Court has, in passing upon the same, thus construed it. (Guy v. Middleton , 5 Cal. 392.)
To hold that the action could be brought when it was, we are compelled to say, that a person, under our redemption law, who has been treated as the owner, and who has a right to the use and occupation of property during the period allowed for redemption, is yet liable to the purchaser during the six months for the same use and occupation guaranteed to him by law.
1. Lathrop, the respondent, and the tenant, occupies the same position in the case as his landlord would. The law continuing the owner in possession, adversely to the purchaser, during the six months--the lessee Lathrop, the respondent, can, during that period, acknowledge no other landlord, and he is protected in paying over the rents to the owner, as they fall due.
2. But if this Court desires to go further, and give a full construction to the various sections of the Act quoted, I may be indulged in a further examination of the same.
Counsel for appellant relies upon the two hundred and thirty-sixth section of the Comp. Laws, 563, as authority for bringing thisaction.
Now, it is most clear, that by that section the purchaser is entitled to the rents from the tenant-in-possession, up to the time of redemption, provided the owner, who is rightfully in possession with his tenant, has not already collected them.
If the owner, during the six months, has collected under the lease, as in this case, then, I take it, the remedy of the purchaser is against the owner.
It is clear and undoubted that the judgment debtor is, in contemplation of law, the owner of the property during the six months allowed for redemption, and that he has a right to its use and occupation.
Now, that a tenant is not permitted to dispute his landlord's title, is a maxim of the law. The landlord is in possession, and has the right to be in possession, and the tenant pays him whilst in such rightful possession of his property.
No deed issues to the purchaser until six months have expired. The deed only issues when it is ascertained that the debtor does not redeem. Who, then, is the owner of the real property sold?
The title is never suspended; it is somewhere, and not in the purchaser, until he can claim his deed. Where is it, then, during the sixmonths, but in the debtor, who has always owned it?
Section two hundred and thirty-six, relied upon by counsel for appellant, reads thus:
" The purchaser, etc., shall be entitled to receive from the tenant in possession, the rents of the property sold, or the value of the use and occupation thereof."
An analysis of this section would permit this construction, and this seems to have been the intention of the Legislature: That the rents being unpaid by the tenant, and the property not being redeemed, and the purchaser having obtained his deed, he could collect of the tenant, in that case, for the interim of six months.
He can receive when the owner has not received, but when it has occurred that the owner has received (as in this case), as he has always received, before the sale, it seems plain to me that he should be treated as having received for the benefit of the purchaser, and the remedy of the purchaser is for the use and occupation after the expiration of the six months, and after he had obtained a deed which would authorize him to sue over against the landlord and judgment debtor in possession.
Adopting the construction given to the different sectionsof this Act by the appellant's counsel, and you have the tenant in this position; he must pay the judgment debtor in possession, or he will terminate the lease, throw him out, and break up his business. But if he does pay him, in order to retain possession under his lease, then he must pay the purchaser over again, and be broken up in that way.
The remedy of the appellant is clearly against the landlord and debtor, after the expiration of six months, for money had and received, if he have any remedy at all, for rents paid during the six months to the legal owner in possession.
JUDGES: Burnett, J., after stating the facts, delivered the opinion of the Court. Murray, C. J., and Terry, J., concurring.
OPINION
BURNETT, Judge
The only question presented, regards the construction of the two hundred and thirty-sixth section of the Practice Act. In the case of Guy v. Middleton (5 Cal. 392), 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.