Bay v. Pope

Cope, J. concurring.

Appeal and cross appeal. The judgment is affirmed in the direct appeal, with costs.

In the cross appeal the judgment is erroneous, in allowing the recoupments for the improvements against the mesne profits found

*696by the jury: 1. The improvements were made before the plaintiff’s title accrued. 2. The case made by the finding and pleadings does not bring the defendant within the Practice Act (Sec. 257). The holding of the defendant was not adverse within the section. (See 18 Cal. 487, and cases.)

The last cause—on cross appeal—is remanded, that the proper judgment may be entered on the finding, by adding the yearly rent as damages in the judgment.

Ordered accordingly.