Swanston v. Clark , 153 Cal. 300 ( 1908 )

Upon further consideration of this cause, pending an application for rehearing, we are of the opinion that, inasmuch as the plaintiffs, ever since January 14, 1903, have been in possession of the land, receiving all income, use, and profit thereof and being under no obligation to pay rent to the defendant after that date, it would not be equitable to compel the defendant to pay the taxes and other encumbrances created since that date and not made or suffered by her, or at her instance, or for her benefit. (See Miller v. Corey, 15 Iowa, 166;Farber v. Purdy, 69 Mo. 601; Hall v. Denckla, 28 Ark. 515;Pomeroy v. Bell, 118 Cal. 635, [50 P. 683]; Miller v.Waddingham, 91 Cal. 381, [27 P. 750].) The opinion hereinbefore rendered, so far as it is contrary to this conclusion, is, to that extent, modified.

The judgment of the court below is modified by altering the clause providing for the execution of a deed by the defendant so that said clause shall read as follows: "Within fifteen days after notice of the entry of this decree make, execute and deliver to the plaintiffs, or to the clerk of the superior court for the plaintiffs, a deed conveying to the plaintiffs, their heirs and assigns, the premises hereinafter described, free from all liens and encumbrances existing upon or against the same onJanuary 14, 1903, or created thereafter by the defendant, or ather instance, or for her benefit."

As thus modified, and in all other respects, the judgment is affirmed. The appellant shall not recover costs of appeal herein.