WHITNEY v. ALLEN et al., 21 Cal. 233

Cope, J. delivered the opinion of the Court Field, C. J. and Norton, J. concurring. This is an action upon an undertaking on appeal from a judgment of foreclosure. The undertaking provides, among other things, that if the judgment be affirmed the appellant shall pay the value of the use and occupation of the premises from the time of the appeal. Proceedings upon the judgment were stayed until the appeal was determined, and the question is, whether the sureties are bound for the value of the use and occupation during its pend-ency.

Section three hundred and fifty-two of the Practice Act, in pursuance of which the undertaking was executed, reads as follows: “ If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed, unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect, that during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupar tion of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the Judge of the Court by which the judgment was rendered or order made, and which shall be specified in the undertaking.

When the judgment is for the sale of mortgaged premises and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.” Whether the sureties are bound as contended for depends upon the construction to be given to this section; and to ascertain the intention of the Legislature it is necessary to consider the nature of the judgment and the effect of other provisions of the act. The judgment was simply a judgment of foreclosure, giving no right to the possession of the property, or to the rents and profits, or the value of the use and occupation.

The right to possession was contingent upon a sale and the execution of a deed; but the act provides that a purchaser from the time of the sale, etc., shall be entitled to the rents, or the value of the use and occupation. Until a sale has been made, the debtor may remain in possession without being accountable either for rents or for use and occupation, and subject to no liability except that he may be restrained from the commission of waste.

The Legislature could not have intended that in case of an appeal the liability of the debtor should be increased, and it would be unreasonable to suppose that the intention was to require an undertaking subjecting the sureties to a liability greater than that of the principal. Our opinion is, that the provision in regard to use and occupation must be understood as referring to those eases in which the creditor is entitled to the value of the use, and that an undertaking to pay what the creditor has no legal right to is not binding upon the sureties. The

section includes orders as well as judgments, and the provision in question applies more particularly to judgments and orders directing a delivery of possession. The judgment is reversed and the cause remanded for a new trial.