48 Cal. 361 | Cal. | 1874
The plaintiff introduced, in rebuttal, certain deeds, constituting the chain of title (or a part of it) of the plaintiff’s lessor. Their introduction is defended here on the ground that they tended to rebutt the defendants’ evidence, which was introduced to show that their entry was made in good faith owning the title. But the defendants’ deeds were introduced, not, to show that they owned the title, but that they entered in good faith under claim, and color of title. (Thompson v. Smith, 28 Cal. 532; Shelby v. Houston, 38 Cal.
The Court found that the defendants, “ during the temporary absence of the plaintiff, unlawfully, and without any right so to do, but asserting a claim of title thereto, entered into and upon such premises.” It will be observed that it is not found that they asserted a claim of title thereto in good faith. The evidence tends to- show—and there is no contradictory evidence on the point—that they entered in good faith, under claim and color of title. If they so entered, the entry was not unlawful within the meaning of the Forcible Entry and Detainer Act. This doctrine was laid down in Thompson v. Smith, supra, and also in Shelby v. Houston, supra, in which the action was brought under the third section of the Forcible Entry and Detainer Act of 1866 (Statutes 1865-6, p. 769).
Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.
Neither Mr. Chief Justice Wallace, nor Mr. Justice McKinstry, expressed an opinion.
