Opinion
Rehearing Denied Aug. 1, 1929
Hearing Granted by Supreme Court Aug. 29, 1929
Appeal from Superior Court, Sacramento County; Peter J. Shields, Judge.
Action by Frank C. Fahrenbraker against the E. Clemens Horst Company, Josephine A. Hunt, and others. From a judgment for plaintiff, defendant Hunt appeals. Affirmed.
COUNSEL
Brobeck, Phleger & Harrison, of San Francisco, and John R. Connelly, of Sacramento, for appellant.
Busick & Leeper, of Sacramento, for respondent.
OPINION
FINCH, P.J.
This is an appeal by the defendant Josephine A. Hunt from the judgment herein apportioning the rent of the lands described in the complaint for the year ending November 1, 1926.
The defendant E. Clemens Horst Company holds the land under a lease from A.D. Murphy for a term of ten years, commencing November 1, 1919, at the annual rental of $1,500, payable annually at the end of each year of the term. The lease was duly recorded. During the term of the lease, Murphy executed a trust deed to secure payment of his promissory note to the appellant and on September 4, 1926, the land was sold by the trustee to satisfy the indebtedness; the appellant becoming the purchaser for the amount of the debt and the expenses of sale. On September 17, 1926, the trustee conveyed the land to appellant. At the time of the sale, the plaintiff held an unrecorded assignment of all rents to become due under the lease as security for an amount due him from Murphy. The assignment was made prior to the execution of the trust deed, but the appellant had no knowledge thereof until after she had purchased and paid for the property and had received the trustee’s deed therefor. The court apportioned the rent for the year ending November 1, 1926, awarding the plaintiff $1,316.10 thereof and the appellant $183.90. Appellant contends that she is entitled to all of the rent for the year. The plaintiff’s rights under the unrecorded assignment are not greater than, but the same as, Murphy’s would have been, if no assignment had been made.
"Rent is not, at common law regarded as accruing from day to day, as interest does, but it is only upon the day fixed for payment that any part of it becomes due. The result of this principle is that, ordinarily, the person who is on that day the owner of the reversion is entitled to the entire installment of rent due on that day, though he may have been the owner of the reversion or rent but a part of the time which has elapsed since the last rent day. *** When the landlord makes a conveyance of the reversion, the grantee is entitled, in the absence of a contrary stipulation, to all the rent which falls due at the next rent day." Tiffany on Landlord and Tenant, § 176. In Diepenbrock v. Luiz, 159 Cal. 716, 115 P. 743, L.R.A.1915C, 234, Ann.Cas.1912C, 1084, the following language in section 389 of Taylor’s Landlord and Tenant (9th Ed.) is quoted with approval:
"It is well settled that in all cases of periodical payments, accruing at intervals, and not de die in diem, there can be no apportionment, for rent will not be apportioned in respect of time, unless by force of a statute or of some special provision of the lease."
"A conveyance by operation of law or under a trust deed or power of sale in a mortgage or by a master or sheriff under a decree or execution that is valid against the lessor, will be as efficacious as a deed from him directly. Whatever unqualifiedly passes his reversion will pass rent thereafter accruing." Underhill on Landlord and Tenant, § 318; Tiffany on Landlord and Tenant, § 180; 36 C.J. 366.
In this state rent is apportioned during the period allowed for redemption of property sold under execution or in the foreclosure of a mortgage. Clarke and Cain v. Cobb, 121 Cal. 595, 54 P. 74. The decision last cited, however, is based on the special provisions of section 707 of the Code of Civil Procedure, relating to the redemption of property from sales on execution and foreclosure, which section has no application to sales under trust deeds.
In this case, the record on appeal consists of the judgment roll, and, in addition, copies of the trust deed and the trustee’s deed to the appellant, both certified by the trial judge as having been introduced in evidence. It need not be determined whether these instruments are so authenticated as to entitle them to be considered on appeal, because neither of them throw any light on the issues to be determined. No copy of the lease appears in the record, and its terms are not disclosed further than as stated. The complaint alleges that the appellant "has no right, title nor interest in or to said rents *** earned prior to the 17th day of September, 1926," on which date she became the owner of the land through the trustee’s deed. Appellant’s answer denies this allegation, and alleges that she "is the owner of and entitled to all rent due under the aforementioned lease *** and the plaintiff has no right, title or interest in or to any of said rent or any part thereof." The court found that "all the allegations of plaintiff’s complaint are true," and that the foregoing denials and allegations of the appellant’s answer are untrue. In the absence of evidence showing the terms of the lease, it must be presumed in support of the findings that the lease contained a special provision for the apportionment of the rent in the event of a transfer of the land. 2 Cal.Jur. 877.
Appellant contends that the judgment in favor of the plaintiff is for more than was due him from Murphy. Since the appellant was given judgment for all that was due her, she is not in a position to complain that the plaintiff was given judgment for too much. That is a question in which only the plaintiff and Murphy are concerned. If there is any excess in the award to plaintiff over the amount due him, such excess belongs to Murphy.
The other questions argued by appellant are disposed of by what has already been said.
The judgment is affirmed.
We concur: PLUMMER, J.; THOMPSON, J.