I dissent. Section 707 of the Code of Civil Procedure declares: “The purchaser from the time of the sale until a redemption, and a redemptioner from the time of his redemption until another redemption, is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof.” The term “rents,” as here used, signifies the amount agreed to be paid by the tenant in possession, as distinguished from the value of the use and occupation, which is to be paid by the judgment debtor, if he remains in possession. The purchaser is entitled to all of these “rents” which accrue after the sale of the property, subject to his obligation to refund the amount he may receive in case the judgment debtor shall redeem from the salé. Section 700 of the Code of Civil Procedure declares: ‘Upon a sale of re.al property the purchaser is substituted to and acquires all the right, title, interest, and claim of the judgment debtor thereto.” By virtue of this section the purchaser acquires the entire title of the judgment debtor to the property sold, and is entitled to the rents thereafter to accrue therefrom, as fully as if the sale was made by the judgment debtor himself. A sale by *601the sheriff is equivalent to a sale by the judgment debtor. (Blood v. Light, 38 Cal. 649; 99 Am. Dec. 441.) “The execution of the deed gave to the purchaser at the sale no new title to the land purchased by him, but was merely evidence that his title had become absolute.” (Robinson v. Thornton, 102 Cal. 680.) “The purchaser has already bought the land and paid for it. The sale is simply a conditional one which may be defeated by the payment of a certain sum by certain designated parties, within a certain designated time. If not paid within the time, the right to a conveyance becomes absolute without further sale, or other act to be performed by anybody. .... During the period which elapses between the sale and expiration of the time for redemption the statute regards the purchaser as the owner in equity, and gives him the rents and profits, or the value of the use and occupation. In short, it gives him the entire beneficial interest in the property, except the actual possession.” (Page v. Rogers, 31 Cal. 293. See, also, Duff v. Randall, 116 Cal. 226; 58 Am. St. Rep. 158.) In Reynolds v. Lathrop, 7 Cal. 43, it was held that before the expiration of the time for redemption the purchaser could maintain an action against the tenant for rent, according to the terms of his lease. The court said: “But we think it clear that Lathrop was responsible to the plaintiff for the rents in the way he would have been to the judgment debtor had no sale been made, and that consequently the plaintiff could sue for the rent as often as it fell due under the terms of the lease existing when he became purchaser. The effect of the sale was equivalent to an assignment of the lease for the time.” If, instead of the sale by the sheriff, the judgment debtor had, at that time, assigned the lease for the time allowed for redemption, his assignee would have been entitled to all the rents which might accrue during the term for which the lease was assigned. A grant of the reversion of an estate passes the rights to rents that subsequently become due as incident to the reversion, but not the rents then in arrear. (4 Kent’s Commentaries, 354; Sampson v. Grimes, 7 Blackf. 176; Peck v. Northrop, 17 Conn. 217.) “The rent is incident to the reversion and passes with it, and the grantee, by force of the conveyance, has a right to receive all rent accruing upon the estate; if is a part of the realty and passes by the deed.” (Burden v. Thayer, 3 Met. 76; 37 Am. Dec. 117.)
*602In the absence of an agreement or a statute for that purpose there can be no apportionment of rent which, by the terms of the lease, is payable at stated intervals. “When rent is payable quarterly or yearly, the annual or quarterly payments are not to be apportioned if the reversion is transferred before the time at which the rent becomes due. The right to such quarter’s or year’s rent passes with the reversion. In the present case, had the year’s rent become due five days after instead of five days before the mortgage, it would have passed by it to the plaintiff.” (Burden v. Thayer, supra.) Taylor, in his Landlord and Tenant, section 389, says: “It is also well settled that in all cases of periodical payments accruing at intervals, and not de die in diem, there can be no apportionment, for rent will not be apportioned in respect of time, except by force of a statute, or of some special provision of the lease.” Kent says (3 Kent’s Commentaries, 470): “The rule at common law was that neither law nor equity would apportion rent as to time, and, therefore, if the tenant for life gave a lease for years, rendering a yearly rent, and died in the course of the year, the rent could not be apportioned, and the tenant would go free of rent for the first part of the 3rear. The principle was that an entire contract could not be apportioned.” (See, also, Zule v. Zule, 24 Wend. 76; 35 Am. Dec. 600; Marshall v. Moseley, 21 N. Y. 280; Woodfall on Landlord and Tenant, sec. 403.) By the statute of 2 George II, chapter 19, and subsequent statutes in England, and also in some of the states, the common-law rule has been superseded, and in certain cases an apportionment of rent is authorized in the case of the death of the lessor between two rent days. But, as no statute of this nature has ever been adopted in this state, the common-law rule must control. This question was very fully considered in Bank of Pennsylvania v. Wise, 3 Watts, 394, where the lessor’s interest in a lot of land and house thereon was sold at sheriff’s sale. The land was held at the time of the sale by a tenant, under a lease for five years, executed three years previously, at an annual rent payable half-yearly, under which a half year’s rent fell due on the 1st of February. The sale was made by the sheriff in January, and the court held that there could be no apportionment between the purchaser and the judgment debtor, but that the purchaser was entitled to the entire rent, saying: “The idea of ap*603portioning the rent that becomes payable after the purchaser of a reversionary interest in fee at a sheriff’s sale has paid the purchase money and received his deed of conveyance for it, between him and the defendant in the ezecution as whose estate it was sold, is unknown to the law, and cannot be reconciled with any of its analogous and fixed principles.” In Kline v. Chase, 17 Cal. 596, a redemption was made twenty-one days after the sale, but it was held that the purchaser was entitled to all the rents which accrued between the time of sale and redemption. At that time the law did not require the purchaser, in case of a redemption, to account for any of the rents which he might have-received. In Martin v. Martin, 7 Md. 368, 61 Am. Dec. 364, the tenant had leased a farm for two years, agreeing to pay as-rent one-half of the wheat and corn raised thereon. After paying the rent for the first year, and before any rent was due for the second year, he accepted certain orders drawn upon him by his landlord, payable out of the rent. After these orders had been accepted, but before any rent was due, the farm was sold at sheriff’s sale under a judgment against the landlord. It was held that, notwithstanding the acceptance of these orders, the tenant was liable to the purchaser for the whole rent of that-year.
There is no injustice in this rule. If the land is under lease, that fact is considered by the purchaser in making his bid, and the amount of rent which he will receive from the tenant is an element in determining the amount of his bid. If, by the terms-of the lease, 'the rent day fell prior to the sale, it would belong to the judgment debtor, and the property would have less value than if it should fall after the sale. “By allowing the purchaser to take all the rent becoming due after the sale it adds so much to the value of the lessor’s interest in the land at the time of sale, and secures to him the benefit of the partial rent not due at that time in the way that it can be done consistently with established rules of law.” (Martin v. Martin, supra.)
To hold that the purchaser is entitled to only the amount of rent “earned” by the land subsequent to the sale would in many cases render the provision of the statute nugatory, for, if that is the limit of his right, it must also be held that he is entitled to whatever the land has earned during that period. The ten*604ant cannot be compelled to- pay the rent otherwise than in accordance with the terms of bis lease, and if, by these terms; he has paid the rent for a portion of the period for redemption, the fact that the land has earned some rent during a part of that period cannot impose upon him any liability to the purchaser for the rent so earned. If the tenant has paid the rent in advance before the sale, and his term expires during the period for redemption, he cannot be compelled to pay any further sum for his use and occupation of the land. So if, by the terms of his lease, there is no rent payable during this period, the purchaser can have no claim upon him for the rent. He cannot be made liable beyond the terms of his lease, whether he has paid the rent before the sale -or is not required to pay it until after the time for redemption has expired.