42 Cal. 316 | Cal. | 1871
This is an action against a tenant holding over, to recover the premises under the Forcible Entry and Detainer Act of 1863. The complaint alleges that plaintiff, on the 20th of June, 1867, “leased, demised, and let to said defendant” the premises in question, “to have and to hold the said premises to said defendant, Charles Mangeot, for the month thence ensuing, at the rent of twenty-five dollars, payable on the twentieth day of said month of June, in advance. That by virtue of said lease, the said defendant, Charles Mangeot, went into the possession and occupation of the demised premises, and still continues to hold and occupy the same.” The complaint then alleges the giving of notice in time, under section six of said Act, that if defendant should hold over after the expiration of the month, the rent would be five hundred dollars per month, in gold coin, a demand and refusal of the rent, and a demand of the possession. The case was tried by a referee; the facts found in favor of plaintiff' and judgment rendered for possession and treble rent, at five hundred dollars per month.
The first point is, that the complaint does not state facts sufficient to constitute a cause of action or to sustain the judgment, in this, that the tenancy alleged is a tenancy for
Without this provision of the statute, of course, the landlord could not change the terms of the lease in the mode prescribed. This mode of changing the terms of the lease, and creating a new contract against the will of the tenant, then depends wholly upon the statute, and the cases in which such changes can be made must be limited to those in which it is expressly authorized. We cannot extend the stringent provisions of the Act to other cases not provided for. Unless a lease for a specific period of time, as one month, is the same identical thing in law as a lease for an indefinite period of time with rent payable monthly, or a lease from month to month, the provisions of section six do not apply to the former. And they are clearly not identical in law. They are different estates, with different incidents, and are designated in law by different technical terms. There is a substantial, not merely a verbal difference. On a lease for a specific time, as one month, the estate terminates by the mere lapse of time, and at the end of the term the lessee must go out. Eo notice is necessary to terminate the tenancy and entitle the landlord to reenter, or to enable the
In this .case, the tenancy alleged in the complaint is a tenancy for a specified period of time, to wit: one month. It is technically a tenancy for years and not a tenancy from year to year, or from month to month. And the statute only authorizes a change of the terms of the lease in the mode pursued in the case of a tenancy from month to month. It was not authorized, therefore, in the case alleged in this complaint. The last clause of the section does not aid the plaintiff. It is as follows: “In all leases of lands or -tenements, or any interest therein, for a month, or any term less than one year, and the tenant holds over his term by consent of his landlord, the tenancy shall be construed to be a tenancy from month to month, or a tenancy for such term less than a year as the case may be.” This clause only enacts in express terms the common law. It simply provides that if the defendant had held over after the expiration of the month for which the premises were demised, with the consent of the landlord, he would from so holding over, there
Upon the facts alleged in the complaint, the plaintiff is not entitled to recover five hundred dollars per month rent after the expiration of the term stated. But the complaint states facts sufficient to justify a recovery of the possession of the premises, and consequently, states a good cause of action for some relief, although insufficient to justify all the relief asked and obtained.
The evidence upon the question as to whether defendant was in fact a tenant at all of the plaintiff, is very much in conflict, and we think the finding justified. At all events, the case clearly falls within the rule which prohibits us from disturbing the finding of the referee on that issue.
The provision of the statute conferring jurisdiction upon County Courts in actions to recover the possession of premises held over by tenants against the consent of the landlord, are constitutional, for reasons given in Caulfield v. Stevens,
Under the views expressed it is unnecessary now to decide the point, whether the provisions of the sixth section of the Forcible Entry and Detainer Act of 1863, providing for changing the terms of the lease by serving notice of such intention on the part of the landlord in the mode therein prescribed, are constitutional or not. For the purpose of this decision we assume them to be constitutional.
The judgment, as we have seen, gives relief to which the plaintiff is not entitled upon the facts alleged in the complaint, and the judgment must be reversed, unless the plaintiff will consent to a modification.
Judgment and order denying a new trial reversed, unless the plaintiff and respondent shall»within fifteen days, file in this Court a stipulation, in writing, consenting that the judgment may be modified so as to reduce the judgment for damages to seventy-five dollars; but, upon filing stipulation as herein provided, the .judgment will be modified in accordance therewith.
[The foregoing opinion was delivered at the April Term, 1869, at which time Mr. Chief Justice Sawyer and Mr. Justice Sanderson were members of the Court. A rehearing was granted, and the following opinion was delivered at the October Term, 1871:]
Ordered, that the judgment heretofore rendered in this case, directing a modification of the judgment of the Court below, be and the same is hereby set aside; and it is further ordered that the judgment of the Court below be and the same is hereby reversed, and the cause remanded for a
