Roff v. Duane, 27 Cal. 565

Roff v. Duane

27 Cal. 565 | Cal. | 1865

By the Court, Rhodes, J.

This is an action of forcible entry and detainer. The County Court, on appeal, found for the plaintiff, and the defendants appeal from the judgment and the order denying a new trial. Several of the grounds assigned by the defendants on their motion for a new trial—that the judgment is against the evidence; that the plaintiff was a mere servant or *569hired man of Smith and Sullivan; and that the possession of the plaintiff was a mere scrambling possession—belong to the same general class and relate altogether to the weight or sufficiency of the evidence. The Court below found that the plaintiff was in the peaceable, actual and quiet possession of the premises, and that the defendants were guilty of the forcible entry and detainer complained of; and it is scarcely necessary to repeat that where there is any evidence of a fact in issue which is passed on by the Court below, and where the Court below has denied the motion for new trial based on the ground that the finding is contrary to the evidence, or to the weight of the evidence, or that the evidence is insufficient to support the finding, this Court will not reverse the order of the Court below, unless the order is manifestly an abuse of the legal discretion of the Court. The order in this case is not subject to that objection.

The defendants contend that the judgment for the rents and profits is greater than the law authorizes, because, they say, the plaintiff at most had the right of occupying the premises, according to his lease, only one month. The objection might be tenable if the object of the action was to determine the right to the possession of the premises, or to recover the rents and profits, the right to which depended on the right to the possession of the premises; but the right to the possession is not directly or incidentally in issue. • The inquiry is, Had the plaintiff the actual and peaceable possession at the time of the forcible entry complained of? And if that issue and the unlawful detainer are found for the plaintiff the law awards to him the monthly value of the rents and profits during the time of the detention without regard to his right or title in the premises.

They make the further point, that the Court erred in excluding the evidence offered by them to prove that five to ten days prior to the alleged forcible entry they were in the peaceable occupation of the premises, and that Sullivan and Smith, the lessors of the plaintiff, forcibly entered and evicted them, and tore down and burnt the appellants’ building, and *570employed and paid persons therefor and for holding possession against them, the employés being armed with deadly weapons for that purpose. Upon those facts, they were entitled to have instituted and maintained against Sullivan and • Smith an action for the forcible entry and detainer, or an action of ejectment, if they had also the right of possession; but the forcible entry upon the appellants did not authorize them to seek redress by making a forcible entry upon the actual and peaceable possession of another. It was the object of the statute not only to prevent and punish the forcible entry of those having no right of entry, but also of those who, having a right of entry given by law, make entry “with strong hand,” or “with multitude of preople.” The forcible entry of Sullivan and Smith is no justification of the forcible entry of thé appellants upon the respondent. If the evidence offered had been admitted, it would not have constituted a defense to the action, for in addition to the reasons already given, there was no offer to show that the respondent participated in the alleged forcible entry of Sullivan and Smith, and his privity ■in estate with' Sullivan and Smith would not render him directly or indirectly liable for their wrongful acts.

The appellants also assign as error, the admission in evidence of a document, purporting to be a lease of the premises to the plaintiff for one month. In the body of the lease, Charles K. Smith is described as the lessor, but it is not executed by him, it being signed by E. L. Sullivan and the lessee. The premises described in the lease, have the same name and number of acres and about the same boundaries as the tract described in the complaint. The signatures to the lease were admitted to be genuine signatures of Sullivan and the plaintiff. The defendants objected to the lease being given in evidence on the grounds : “ 1st—That it is incompetent, irrelevant and illegal testimony; 2d—That it was not a lease from Smith to Eoff; 3d—That it was not a lease from Sullivan to Eoff; 4th —That the paper in its body purported to be a lease from Smith to Eoff, and that Eoff never executed it; and 5th—That as a lease it was a nullity as between Smith and Eoff.” The *571counsel for the plaintiff thereupon stated that he only offered the paper in evidence “ for the purpose of showing the extent of the property which the plaintiff claimed he possessed.” The defendants renewed their objections to the document offered for the purpose stated, and the Court overruled the objections and allowed it to be read in evidence, and the defendants excepted.

The plaintiff now insists that the lease was admissible “ for the purpose of showing the nature and character of the plaintiff’s possession, whether peaceable or otherwise, and the extent of that possession. If it was admissible for any purpose, it must be confined in its operation to the purpose expressed when it was offered. Is it admissible for that purpose ? It evidently is not the lease of Smith, nor is it the lease of Sullivan, for Smith does not sign it, and Sullivan does not profess to make it. It does not amount to a lease, and is no more in substance than the document would have been if there had been a blank where Smith’s name appears, and there had been no signature but that of the intended lessee. It thus becomes unnecessary to determine whether a lease made between Smith or Sullivan as the lessor, and the plaintiff as the lessee, would have been admissible as evidence to prove the extent of the premises claimed by the plaintiff, for the record does not present that question. The question is, in substance, whether a draft of a lease unexecuted by the lessor is competent evidence to prove the extent of the land claimed by the nominal lessee. The plaintiff did not enter under that document, nor did he profess to have done so, and he does not pretend to have seen it until several days after his entry on the lands. The point that the defendants, being wrongdoers, have no right to question the validity of the lease has no force, because the document is not in fact a lease. We are clear that the document was not admissible for the purpose for which it was offered, for a paper, in form a lease, to be executed by both lessor and lessee, but in fact executed by the lessee alone, does not tend to extend, limit or define the boundaries of the lands held or claimed by the nominal lessee. We cannot say that because *572the remaining evidence was sufficient to authorize the Court to find for the plaintiff, therefore the error in admitting the lease became immaterial, for it is impossible for us to ascertain whether the Court found that the plaintiff was in the possession of the whole premises sued for or any part thereof, from the lease or from the other testimony in the case.

Judgment reversed, and the cause remanded for a new trial.

Mr. Chief Justice Sanderson expressed no opinion.