F. R. BENSON et al., Respondents, v. W. L. BUNTING, Appellant, 141 Cal. 462

McFARLAND, J.— This is an action to redeem certain real property from a sale made to defendant on the foreclosure of a mortgage. Judgment went for plaintiffs, and defendant appeals from the judgment and from an order denying his motion for a new trial. The ease was here once before', and is reported in Benson v. Bunting, 127 Cal. 532 ; and as the nature of the action is quite fully stated in the opinion rendered on the former appeal, there is no necessity for a general statement of it here.

That appeal was from a judgment in favor of defendant following the sustaining of a demurrer to the complaint, and the judgment was reversed—the court holding that the complaint was sufficient. It was there decided that, on account of certain alleged acts and conduct of the parties, the plaintiffs were entitled to redeem, notwithstanding the fact that the statutory period of redemption had expired before the offer to redeem had been made; and, therefore, their right to redeem upon proof of the material averments of the complaint is the settled law of the case, and need not be here discussed.

After the remittitur went down the ease was tried by the court without a jury, and certain findings were made. Some of the material findings are attacked as not supported by the evidence; but as to those points it is enough to say that in our opinion there was sufficient evidence to warrant each of the findings attacked. It is contended, also, that the findings do not support the judgment; but this contention is not maintainable. There is only one point on this branch of the case which we deem necessary to specially notice.

It is averred in the complaint that the plaintiffs offered to redeem within a certain time, and the averment is denied in the answer; and it is contended that the findings are deficient because there is no specific finding that they did so offer to redeem. We think, however, that while the finding might have been more specific, the subject is sufficiently covered by another finding.

It is averred in the complaint that on February 1, 1898, appellant procured a deed from the commissioner appointed to sell the property, and that appellant “now claims under said deed, and ever since the making thereof has claimed, to be the owner in fee of said premises free from any right of redemption in the plaintiffs, Margaret Reese, Mary E. Dever, and Lizzie V. Reese, or either of them.” This averment was not denied, and the court expressly finds it to be true.

It having been thus averred, admitted, and found, it was unnecessary for the court to find, in addition, that respondents had performed the vain act of offering to do what appellant denied them the right to do. In determining the amount which respondents should pay in order to effect the redemption, the court made certain findings and rulings to which appellant excepts.

The court allowed respondents to set up against taxes, etc., paid by appellant, the rental value of the premises while in possession of defendant, at twenty dollars per month, and this allowance is attacked; but we think the evidence fully warranted the court in fixing that amount.

Appellant contends that he should have been allowed for some improvements which he put on the premises; but the alleged improvements were not made until after this present action had been commenced and appellant had been informed that respondents denied his ownership of or right to the premises, and under these circumstances, if he chose to make improvements, he did it at his own peril. The principle announced in Malone v. Roy, 107 Cal. 518, and Mahoney v. Bostwick, 96 Cal. 53, clearly applies here.

Appellant knew that he got into possession against the consent, and in hostility to, the claims of respondents, and he was not entitled to recover from the latter the value of the improvements placed upon the land under an assertion of title hostile to them; and the finding of the court which shows that the date of the alleged improvements was subsequent to the commencement of the action was a sufficient finding on the subject. Appellant contends that he should have been allowed the amount of an alleged street assessment against the land, which alleged assessment the court found to be void.

We do not see that the court erred in so holding; the assessment was against too much land, and therefore void (Ryan v. Altschul, 103 Cal. 177), and it is unnecessary to consider respondents’ contention as to the insufficiency of the engineer’s certificate. Appellant contends that the court erred in fixing the amount of interest which respondents must pay in order to redeem, and that more interest should have been required. The court allowed two per cent per month interest during the six-months statutory period of redemption, and thereafter tie legal rate of interest of seven per cent per annum.

The contention of appellant is, that two per cent per month should have been allowed until the time of actual redemption under the judgment; but this contention is not maintainable. Appellant having denied the right of redemption and prevented the exercise of it, cannot recover the extraordinary interest which respondents would have avoided if they could have exercised their right of redemption.

Indeed, respondents argue with great force that they should not have been required to pay the seven per cent per annum interest, or any interest at all, during the long period after the repudiation of their right to redeem; but respondents are not appealing, and we cannot consider any alleged error against them. However, the appellant, if the case was rightly decided against him in other respects, has no just reason to complain as to the amount of interest allowed him. There are no other points calling for special notice.

We think that the judgment is right, and that, under all the circumstances of the case, as was said by the court on the former appeal, “no injustice would be done defendant in permitting the plaintiff now to redeem.” The judgment and order appealed from are affirmed. Lorigan, J., and Henshaw, J., concurred. 78 Am. St. Rep. 81. 31 Am. St. Rep. 175.