21 Cal. 229 | Cal. | 1862
Field, C. J. and Norton, J. concurring.
In April, 1860, the defendant executed to the plaintiff and one Berring a lease of certain premises in the city of San Francisco, for one year, commencing on the first of August. Berring assigned his interest to the plaintiff, and at the proper time the plaintiff tendered the rent and demanded possession of the premises, but was prevented from entering by one Reed, who was in possession, claiming to hold under a prior lease. The action is brought upon a covenant in the lease for quiet enjoyment, and the question is, whether the defendant was bound by the covenant to put the plaintiff in possession. The case comes up on demurrer to the complaint, the Court below having sustained the demurrer, and rendered a judgment for the defendant.
The language of the covenant is, that the lessees paying the rent shall peaceably and quietly have, hold, and enjoy the premises for the term mentioned. This is the form usually adopted in such cases, and there is no doubt that a covenant of this character
If it were averred that Reed was in possession actually holding under a superior title, the complaint would probably be sufficient, without alleging that a suit had been brought, and the validity of the title judicially determined. It is not enough, however, to have averred that he was in possession, claiming to hold under a prior lease, for it was necessary to show that the plaintiff had been kept out by means of a paramount title.
Judgment affirmed.