The herald., 1893-02-17
FOUR OPINIONS.
The Highest Court in the State Passes on
Important Matters.

FOUK UPlNlONS.
The Highest Court in the State Passes on
Important Matters.
Four opinions were yesterday filed at
the Office of deputy clerk of the su-
preme court in this city.
George A. Ralphs, executor Of the will
of Kimball Hardy, respondent, VS.. Mrs.
L. E. Hensler and J. Irving Weed. ap-
pellants. This was to foreclose a mort
gage and to secure the payment of three
promissory notes executed to Hardy in
his lifetime, by James p. Mccarthy as
attorney in fact for Mrs. Hepeler, in
which Weed is made party defendant,
because he claimed an interest in the
property. The lower court found for the
plaintiff on all the issues, and the de-
fendant appealed, contendine that the
court erred in admitting her power of
attorney, notes and mortgages, and
claiming that Hardy agreed to extend
hetime for the payment of the money
in the controversy, provided the accrued
interest was paid up, and that therefore
the notes were not due until after the
action had been commenced. Appellant
further contends that the evidence
does not justify the findings
as Hardy died before the commencement
of the action and that his will was ad
mitted to probate; that letters testa-
mentary were issued to plaintiff or that
plaintiff ever qualified to act as exec
utor; and the court sustains these points,
holding that the trial court had no right
to take judicial notice of the fact that
the probate proceedings in the matter of
Hardy's estate were in the same court,
there being no evidence of any such
proceedings. The judgment of the lower
court was reversed and the case re-
manded for new trial.
In the case of Harris, respondent, VS..
Foster, appellant, the decision of the
lower court is affirmed.
This was an action to recover from
the defendant one half of the value
of the use and occupation Of the Sisquoc
ranch in Santa Barbara county from
September l, 1890, to April l, 1891. The
judgment of the trial court was for the
plaintiff from February /, 1891, and the
defendant appealed, claiming that the
findings did not sustain the judg-
ment. Foster holds that as he
chased by Harris at foreclosure
GaiO anu Phld W UhO bhCA OWACAb bhO
rent in advance for the whole term &C.
cording to his lease, he is not liable to
the plaintiff, as successor in interest of
his lessons for any part of the value OF
his use and occupation under that lease
but the supreme court holds that as the
| judgment of foreclosure had been en-
tered before the defendant obtained his
lease or paid any rent Hereunder he
must have accepted the lease with the
knowledge that the plaintiff had the
right to have half of the land go leased
sold to satisfy the judgment of fore
closure, and that "the purchaser from
the date of sale until redemption"
would be "entitled to receive from the
tenant in possession the rents OF the
property, or the value of the use and
occupation thereof"
The defendant continued in possession
for one month after the expiration OF
his lease, and the trial court found the
value of the use and occupation for that
period to be 800, and gave a judgment
against the defendant for half that sum.
This ruling is held to be right, as the
defendant did not by holding over cease
to be a tenant in possession, or acquire
any right to use plaintiffs property
without paying for it. 1t was held that
the finding fully sustained the judg-
ment, which was affirmed.
The case Of Klauber & Levi, respond
ents, vs. George Vigneron, ct al, appel
lants, was remanded for new trial
This was an action to foreclose certain
mortgages. December 16, 1887, Vigne-
ron of San Diego gave his note to John
A. Watson for $500 secured by mortgage
both note and mortgage. being assigned
to plaintiffs. January 26, 1888, Vigne.
ron gave plaintiffs another mortgage on
the same property for 500. July 10th
Vigneron conveyed the property to Jo
anna Ford, and July 18th he married
her. May z, 1889, Vigneron took back
his $500 mortgage and gave the plain
tifs $1,000 mortgage. January l, 1890
4 Vigneron and his wife gave G. II. Hill 6
mortgage on the same property fol
$500. June 27, 1890, the plain
tifis began an action to fore
close the $500 and $1,000 mort
cages, Vigneron. his wife and Hill beiDt
the parties defendant. Vigneron al
lowed the matter to 60 by default, bu
his wife and Hill contested, the latter il
his cross complaint asking for the fore
closure of his mortgage. A decree wat
entered for the plaintiffs and Mrs. Wig
neron appealed and the result is deci
sion in her favor.
In the case of the San Diego Flumt
company, respondents, vs.. Levi Chase
appellant, the judgment of the lowe
court was affirmed. This was case in
volving the correctness of the rulings 0
the lower court as to the correctness o
the rulings of the lower court in refus
ing the defendant leave to amend hi
cross complaint, and in rejecting evi
dence offered for the purpose Of proving
the facts stated in the pro
| al<..x had staadxr 1aaruaa