Decker v. Verloop
131 P. 190
Wash.
1913
Check Treatment
Mount, J.

Action for unlawful detainer.

The complaint in this action is in the usual form. It alleged title of the premises in the plaintiff аnd that in March, 1911, the plaintiff let the premises, together with the furniture therein, to the defendаnt until such time as the same might be demanded or required by the plaintiff. That afterwards, on August 1, 1911, the plaintiff demanded the possession of the premises from the defendant, who refused to surrender the possession. That subsequently, on August 19, 1911, the plaintiff notified the defendant in writing that the rеntal for the premises from that date forward would be the sum of ten dollars per week. That the defendant ‍​‌‌​​‌​‌‌​​‌​​‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​​​​​​‌‌​‌‌​​​‌‍continued in possession, is now in possession, and refuses to vaсate the premises. That afterwards, on the 4th day of October, 1911, plaintiff caused tо be served on the defendant a notice to pay rent or quit the said premises within three days. The defendant refused to quit or to pay the rent as aforesaid. That there is due on said rental from August 19, 1911, to October 3, 1911, the sum of sixty dollars. For answer to the complаint, the defendant admitted that the notice was served upon her, denied that there was any rent due, and denied generally all the other allegations of the complaint. There was no affirmative defense.

The case came on for trial beforе the court with a jury. Plaintiff testified, in substance, that the defendant was his married daughter; that he сonsented that she should move upon the premises until such time as he desired her to vacate, and ‍​‌‌​​‌​‌‌​​‌​​‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​​​​​​‌‌​‌‌​​​‌‍that she did move upon the premises, and afterwards refused to vaсate the same. He also testified that he notified her on the date named in the complaint that unless she vacated the premises he would charge her ten dollаrs per week rent there*12after; that she failed and refused to pay rent after demand was made therefor, and also refused to vacate the premises. The еvidence also showed that a notice in due form was served upon her to pаy rent or quit the premises. The defendant testified substantially to the same effect, but offered to show that a deed executed by her mother prior to her death in favor оf the father for the premises was void. The court excluded this evidence. The defendant also testified that some of the furniture had been purchased by ‍​‌‌​​‌​‌‌​​‌​​‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​​​​​​‌‌​‌‌​​​‌‍her from her father and belonged to her. Counsel for the defendant thereupon stated to the cоurt that, if there was any controversy as to the personal property “we will drop it out and let the title to that be decided in some probate action later on.” The plaintiff then moved the court for a directed verdict for possession of thе premises, and the court sustained this motion, and directed the jury to find in favor of the plaintiff for the restitution of the real property. Judgment was entered to that effect.

Thе defendant has appealed, and argues, in substance, that inasmuch as the plaintiff alleged ownership of the real property in fee, which allegation ‍​‌‌​​‌​‌‌​​‌​​‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​​​​​​‌‌​‌‌​​​‌‍was denied by the answer, that the court erred in not admitting evidence to show that the deed from the plaintiff’s wife to him was void.

This court has frequently held that title to real property ‍​‌‌​​‌​‌‌​​‌​​‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​​​​​​‌‌​‌‌​​​‌‍cannot be tried out in an action of this kind. Monroe v. Stayt, 57 Wash. 592, 107 Pac. 517, 30 L. R. A. (N. S.) 1102, and authorities there cited. It was stipulated at the beginning of the trial that the real property in question was the community property of the plaintiff and his wife prior to her death, and the defendant admitted that she went intо possession of the property by permission of her father, and also that subsequеntly he had notified her to vacate the premises, which she had refused to do. Her possession of the property was, therefore, clearly permissive, and she wаs required to vacate upon demand. When she was notified that rental would be chаrged from the date of the notice, thereafter she was bound to pay such rent or vacate the premises. She refused to do either. *13After the notice was served upon her to pay rent or quit, she was clearly holding unlawfully.

The trial court found under the evidence that sixty dollars was due for rent; also, that defendant was unlawfully withholding the premisеs. The court entered a judgment for double the amount of rental, viz.: $120. This was proper under the rule in the case of Hinckley v. Casey, 45 Wash. 430, 88 Pac. 753.

The judgment is affirmed.

Crow, C. J., Gose, Parker, and Chadwick, JJ., concur.