Johnson v. Dopkins , 3 Cal. 391 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

The conveyance by Morse to Mrs. Keys, subrogated her to the rights which he held as mortgagee, and Bradley’s consent did not invest her with any greater interest. The only error observable is in the computation of damages by the court below, and this results from not having an account taken between the parties.

The interest of Mrs. Keys was twofold.

1st. As mortgagee with a claim of twenty-five hundred dollars derived from Morse.

2d. As lessee of Bradley, the mortgagor from 30th April, 1851, to 30th April, 1852, at a rent of one hundred dollars a month.

By the purchase at sheriff’s sale, Johnson obtained Bradley’s equity of redemption subject to the lease to Mrs. Keys, and therefore had no right to demand possession of her until the expiration of the lease, and ought not to recover rent at a higher rate than that fixed by the lease, up to the time he demanded possession, after the expiration of the lease. And if it shall appear by this rule of computation that the rents were insufficient to have paid the mortgage debt of Mrs. Keys at the time this suit was brought, then it is premature, and must fail, unless the plaintiff offers to redeem, which he may do by the allowance of an. amendment.

The judgment is reversed and the cause remanded, that an account may be taken upon the principles here indicated.