SHORES et al. v. SCOTT RIVER COMPANY et al., 21 Cal. 135

Cope, J. delivered the opinion of the Court Field, C. J. and Norton, J. concurring. The Scott River Water and Mining Company executed to the plaintiff a mortgage upon certain ditch property in the county of Siskiyou. The mortgage debt not being paid, a suit was brought, and a decree obtained under which the property was sold—the plaintiffs becoming the purchasers, and receiving the usual certificate of sale, and at the expiration of six months thereafter a deed.

The present suit was brought to recover the rents and profits during a portion of the time allowed for redemption, and to obtain an injunction and the appointment of a receiver. A judgment was rendered granting the relief asked; and from this judgment two of the defendants, McQueen and Richardson, appeal. w The matters chiefly relied on for a reversal grow out of certain transactions between the Scott River Company and one Steele. These transactions took place subsequently to the execution of the mortgage, and we do not see in what respect the rights of the plaintiffs were prejudiced by them.

Steele was in possession of the property when the foreclosure suit was commenced, and was made a party to the suit—and Ms rights, whatever they may have been. were cut off by the decree. Richardson came in under Steele, and as the tenant in possession, is undoubtedly responsible for the rents and profits. McQueen was the agent of Richardson, and though having the actual management of the property, can hardly be regarded as standing in the position of a tenant. His possession was the possession of Richardson; and we are of opinion that the remedy of the plaintiffs is confined to the latter.

It is true, the proceeds arising from the use of the property went into the hands of the former, but the statute only gives a remedy against the tenant in possession. The right to recover rests upon the statute; and the tenant in possession is the only person against whom the right exists. It is possible that, as against Richardson, so far as his personal liability is concerned, the suit was prematurely brought, but this point is not made. The suit was brought before the plaintiffs obtained a deed, and it may be a question as to whether a cause of action had then accrued.

There is no doubt, however, that the plaintiffs were entitled to a receiver; and we think the judgment should be affirmed, except as to McQueen. To that extent it must be reversed, but we shall affirm it in other respects. Ordered accordingly.