Kaston v. Paxton

• Decision Date: 03 April 1905
• Parties: KASTON v. PAXTON.
• Court: Oregon Supreme Court

80 P. 209

46 Or. 308

KASTON v. PAXTON.

Supreme Court of Oregon

April 3, 1905

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by J.E. Kaston against Bessie W. Paxton. From a judgment in favor of plaintiff, defendant appeals. Reversed.

O.F Paxton, for appellant.

Granville G. Ames, for respondent.

PER CURIAM.

This is a suit for an accounting. The complaint states, in effect that one P.O. Lundin was on June 29, 1894, and September 21 1895, the owner of certain real property in Portland, which he mortgaged to the Alliance Trust Company, Limited, to secure the sums of $3,000 and $1,000, respectively, the debts maturing July 1, 1899 and 1900; that these mortgages were assigned to one Jennie Y. Wade, who, upon default in the payment of the sums due, secured a decree foreclosing the liens thereof, and, executions having been issued thereon the premises were sold thereunder to the defendant, who, on a confirmation of the sale, September 18, 1902, took possession of the land, and collected the rents thereafter accruing amounting to $528.20; that on August 19, 1903, Lundin and his wife sold and conveyed the premises to plaintiff, who, three days thereafter, redeemed the same from the sale thereof under the decree of foreclosure; and that the defendant, having been requested by plaintiff to pay to him the rents she had collected, refused to comply therewith. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of suit having been overruled, and the defendant declining further to plead, a decree was rendered against her for the sum demanded, and she appeals.

It is contended by defendant's counsel that the rents received in the case at bar accrued prior to the conveyance of the premises to plaintiff, and the right thereto did not pass by the deed executed to him, and that a suit in equity cannot be maintained for the recovery of the sums secured, for which reasons an error was committed in overruling the demurrer. Rent, in the legal sense, is a compensation paid for the use of demised premises, and is treated as a profit arising out of lands and tenements corporeal. Wood, Landlord & Tenant, § 448. The rents involved herein accrued before the land was conveyed to plaintiff, and, though the right to recover the sum received on account thereof might have been assigned by Lundin, as a chose in action ( West Shore Mills Co. v....