92 Cal. 542, 14195, Farnum v. Hefner
|Citation:||92 Cal. 542, 28 P. 602|
|Party Name:||C. E. FARNUM, Appellant, v. PHILIP HEFNER, Respondent|
|Attorney:||Carter P. Pomeroy, for Appellant. H. V. Reardan, for Respondent.|
|Judge Panel:||Foote, C. Belcher, C., and Fitzgerald, C., concurred.|
|Case Date:||December 30, 1891|
|Court:||Supreme Court of California|
Appeal from a judgment of the Superior Court of Butte County, and from an order denying a new trial.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.
The facts are stated in the opinion, and in the decisions rendered upon the former appeal, reported in 79 Cal. 575.
This cause has been here before (79 Cal. 575), where the facts pertaining to it are fully stated.
It was contended on that appeal that Hefner, the defendant, was entitled to certain wheat, which had been grown upon Farnum's land by a tenant named Butler, by virtue of an execution sale of the interest of Butler to Hefner in the leasehold. And in support of this view the judgment roll in the action of Hefner against Butler was offered in evidence by Hefner, and refused by the court. The court here held that this should have been admitted because the transfer of the leasehold interest of Butler by the execution sale was an involuntary assignment of the lease which was not specified in the lease as a forfeiture thereof, the opinion on the point reading thus: --
" The covenant in the lease is the ordinary kind which applies, it seems to us, to a voluntary, and not an involuntary, assignment of the lease. It is firmly established by authority that under such a covenant an involuntary assignment by sale under execution -- bankruptcy and the like -- is not a violation of the covenant, and does not work a forfeiture." (79 Cal. 580; 12 Am. St. Rep. 174, and authorities cited.)
The effect of the decision then was to reverse the judgment which Farnum had obtained against Hefner for damages for conversion of the wheat raised on the leased premises by Butler, and claimed by Farnum, as also the order denying Hefner a new trial.
It is now contended by Farnum, the appellant, that the lease was forfeited by a written assignment to one Gibbs, by Butler, before the judgment of Hefner against Butler was obtained. And
[28 P. 603]this seems to be the only
point made as...
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