123 P. 227 | Cal. Ct. App. | 1912
The facts are these: That on or about the third day of December, 1906, one Mallory and H. E. Kellogg, defendant, entered into a written agreement for the purchase and sale of real property in Kings county, under which agreement it was provided that a certain note should be paid on or before October 1, 1909; that certain interest upon other notes should be paid on or before such date; that Kellogg should pay all taxes and charges assessed against the property, as well as water taxes levied, on or before such date; time being made of the essence of the contract. It was further agreed that if the second party should be in default in *431 the performance of any of the terms and provisions of the agreement, his rights should be at an end, and that if allowed to remain upon said premises thereafter, he should hold and occupy as tenant of the said Mallory. Possession of the premises was given at the time of the execution of the agreement. Kellogg made default in each and all of the obligations of the contract imposed upon him to be performed on or before the first day of October, 1909, and on the fifth day of October following, Mallory gave notice to him that his rights were forfeited under the contract, and that he (Mallory) was going to sell his right to said property. After such notice to Kellogg, Mallory sold the premises to plaintiff, who demanded possession thereof, which was refused, and Kellogg and Carl Witzke, holding under him, continued in possession. Accordingly, on October 18, 1909, Abbott made written demand for the surrender of possession and occupancy of the premises, and upon defendant's failure and refusal to surrender possession within three days thereafter, this action was brought to recover possession. Defendant by his answer denied the seisin and right of possession of plaintiff, and averred an equitable ownership by him in the premises, disclaiming the title of the landlord and of his own relation as tenant. The trial court found the allegations of the complaint to be true, and those allegations touching want of ownership in plaintiff, and the denial of tenancy by defendant, to be untrue; found the valuation of the use and occupation of the premises, after notice, to be $120, and by its decree put plaintiff in possession and gave judgment for $120 rent. Defendant appeals from the judgment and from an order denying his motion for a new trial.
Under the allegations of the complaint, and from the express provisions of the contract, defendant, after his default in the performance of the covenants of the agreement, became a tenant at will of Mallory. Being such tenant at will, under section
While the entry of defendant was lawful and not for any definite term, or with any liability for rent (Pomeroy v. Bell,
All matters involved in the forfeiture on account of the nonperformance of the conditions of the contract upon the defendant's part have been settled and determined adversely to defendant by our supreme court in Kellogg v. Mallory,
We see no merit in the claim of error in denying a new trial on account of the newly discovered evidence disclosed by the affidavits.
The judgment and order are affirmed.
James, J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 29, 1912.