16 Cal. 88 | Cal. | 1860
Cope, J. concurring.
This was ejectment for a lot in San Francisco. The case was tried by the Court without a jury. The Court finds the facts to be, that the relation of landlord and tenant existed under a parol demise from month to month, commencing on the first day of each month, at a rent of ten dollars per month, payable in advance; that on the first day of November, 1858, the defendant, then being in possession, denied plaintiff’s title, and refused to pay rent; that on December 23d, 1858, the plaintiff brought suit in a Justice’s Court for the rent due under the lease on November 1st and December 1st, 1858, and obtained judgment, which was paid. On January 8th, 1859, a notice to quit the premises described, on the ground for forfeiture of non-payment of rent reserved, was served by plaintiff on defendant; that the defendant refused to quit or surrender the premises, etc.
Upon these facts, the Court found for the defendant.
The complaint avers a renting from month to month—a payment of rent to November 1st, 1858, at which time defendant denied plaintiff’s title, and refused to pay rent—an averment that the lease under which the defendant entered into possession has terminated, and that he has no right to hold the premises; and further avers, that on July 8th, 1859, he duly notified the defendant, in writing, to quit and deliver up possession of the premises to him, which defendant refused.
No demurrer was interposed to this complaint for this generality of statement as to this cause of forfeiture, or this disclaimer of plaintiff’s title.
It has been seen that this lease was from month to month. It is charged that in November, 1858, the defendant denied the plaintiff’s title, and refused to pay rent. It is not expressly alleged that rent was not paid afterwards, but it is inferentially so stated, if indeed, this be not implied in the denial of the title by the defendant. The complaint avers that the premises are worth forty dollars per month since January 1st, 1859, from which time only the value as damages is claimed.
It is contended that the plaintiff cannot recover, because the recovery of the two months’ rent (for November and December) before the Justice was an affirmation from that time of the contract of lease, and precludes the plaintiff from insisting on a forfeiture. But the defendant on that trial denied the plaintiff’s title and resisted a recovery. He
The defendant’s answer expressly makes this denial of title and holding the possession as tenant, or that plaintiff was entitled to the possession, and this denial seems to have been consistently made by him throughout.
The effect of this denial was to make the defendant a trespasser. He was not entitled to notice to quit. Whenever he assumed to hold in defiance of the plaintiff’s title, the plaintiff was authorized to maintain his action for the recovery of the premises, and he could not set up the denial of the title and then claim the benefit of holding in subordination to it. (Taylor’s Land. & Tenant, 309; 6 Johns. 272; 3 Johns. 422.)
We think, on the facts, the plaintiff was entitled to judgment, and the cause is remanded that it may be entered.
