Cook v. Howard

117 P. 320 | Or. | 1911

Mr. Justice McBride

delivered the opinion of the court.

1. Tested by the requirements of the above sections of the statute, the complaint fails to state a cause of action. It nowhere states that defendant entered by force or that he holds by force, as required by Section 7569. Nor does it state facts equivalent to an unlawful holding over by force, under the provisions of Section 7566.

2. The complaint states that plaintiff executed a lease to defendant, but does not give the terms of the lease, and states the legal conclusions that by its terms defendant’s tenancy has been a tenancy at sufferance.

“An estate at sufferance is where one comes into possession of land by a lawful title but keeps it afterwards without any title at all. As if a man takes a lease for a year and after a year is expired continues to hold the premises without any fresh lease from the owner of the estate.” 2 Black. *150.

3. The conditions under which one may become a tenant at sufferance are so varied that the statement that his tenancy is of that character is a legal conclusion only and insufficient to raise an issue. The allegation that plaintiff has served notice to quit fails to state the date of such service so as to comply with the section above cited. For this reason the judgment of the circuit court is reversed, and the cause remanded for proceedings not inconsistent with this opinion.

Reversed : Rehearing Denied.