Ejectment for a section of land in Kern County:
Defense that, although plaintiff was the owner of the land in fee, he was not entitled to the possession at the time of the commencement of this action (February 10. 1888), for the reason that he had leased the land some two weeks before to Tyler and Brother for the term of one year. It appears that plaintiff, who was a non-resident of this state, executed a lease of the land to Tyler and Brother, on January 26, 1888, for the term of one year, but never gave them possession under the lease. When they went to take possession, they found the land occupied by the defendants, who claimed to hold it under a lease from plaintiff, through the agency of one W. T. Oden; but it appears that Oden had no authority from plaintiff to lease the land. Defendants refused to let Tyler and Brother into possession, and thereupon the plaintiff authorized Tyler and Brother to commence an action for him and in his name against the defendants to recover the possession. In pursuance of this authority this action was commenced and prosecuted through the agency of Tyler and Brother.
From the foregoing facts it is fairly inferable that Tyler and Brother waived their rights under the lease, and that the lease was abandoned by mutual consent of the parties thereto. (Camarillo v. Fenlon, 49 Cal. 207; Skaggs v. Emerson, 50 Cal. 6; Dengler v. Michelssen, 76 Cal. 125; Austin v. Huntsville Coal M. Co., 72 Mo. 535; 37 Am. Rep. 446; Gear on Landlord and Tenant, secs. 163, 168.) Tyler and Brother were under no obligation to the plaintiff to sue the defendants for possession. It was the duty of the plaintiff to put his lessee in possession, and until he did so, he could recover no rent. (See authorities above cited.) If Tyler and Brother declined to sue, as they might, and -apparently did, the plaintiff would not only have lost his rent for the term, but would have been deprived of the possession of his land until
I think the judgment and order should be affirmed.
Hayne, C., and Belcher, C. C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are affirmed.