From Casetext: Smarter Legal Research

Kuhn v. Smith

Supreme Court of California
Sep 1, 1899
125 Cal. 615 (Cal. 1899)


         Department One

         APPEAL from a judgment of the Superior Court of Santa Clara County. A. S. Kittredge, Judge.


         The delay of six weeks in allowing the tenant of agricultural lands to hold over, during which preparations would naturally be made for a new crop, under a lease not providing for a re-entry, should be held to create a tenancy at will, requiring one month's notice to terminate it. (Civ. Code, secs. 789, 790.) The phrase "tenants at will," under our statute, includes "tenants by sufferance." (Civ. Code, sec. 761; code commissioners' note; Deering's Annotated Civ. Code, note to sec. 761.)

         John H. Moore, and Charles Clarke, for Appellant.

         S. F. Leib, for Respondents.

         Defendant was not a tenant at will. Tenancy at will depends upon express contract. (1 Bouvier's Law Dictionary, 692; Blum v. Robertson , 24 Cal. 144, 145.) The holding over not having continued for sixty days no notice was required by the statute. (Code Civ. Proc., sec. 1161, subd. 2.) No notice is required before bringing ejectment against a tenant holding over a fixed term without contract, by mere sufferance for a short period. (1 Bouvier's Law Dictionary, 629, tit. "Estate at Sufferance"; McLeran v. Benton , 73 Cal. 340; 2 Am. St. Rep. 814; McKissick v. Ashby , 98 Cal. 422; Perine v. Teague , 66 Cal. 446; Canning v. Fibush , 77 Cal. 196; Lee Chuck v. Quan Wo Chong Co ., 91 Cal. 597.) The defendant has denied plaintiff's title, and has not pleaded a tenancy at will; and is not entitled to rely upon a notice to quit, under the pleadings. (Bolton v. Landers , 27 Cal. 104; McCarthy v. Brown , 113 Cal. 15; Hihn v. Fleckner , 106 Cal. 95; Perine v. Teague, supra ; Payne v. Treadwell , 16 Cal. 244.)

         JUDGES: Garoutte, J. Van Dyke, J., and Harrison, J., concurred.


          GAROUTTE, Judge.

         This is an action of ejectment. Plaintiffs, by writing, leased certain agricultural lands to defendant for a fixed, definite period -- about ten months. Upon the expiration of the lease defendant refused to give up possession, and this action was commenced. Plaintiffs commenced the action some six weeks after the lease had expired, and defendant now rests his right of possession upon the claim that after the expiration of the lease he became a tenant at will, and by virtue of such tenancy he was entitled to a notice of thirty days (Code Civ. Proc., sec. 1162) before action could be brought to eject him. In other words, his only defense is that the action is prematurely brought. There is nothing whatever in the claim made. The defendant was not a tenant at will. Under his lease he was a tenant for years, and upon the expiration of his term it was his duty to move without notice. He had no rights of any kind which demanded a notice in writing in order that they might be cut off.

         It is not the law of this state that a tenant who remains in possession, perchance a single day after the expiration of his lease, thereby becomes a tenant at will and must be served with a thirty-day notice before he may be ejected. Upon a similar state of facts it is said in McKissick v. Ashby , 98 Cal. 425: "Under the facts stated, we think that plaintiff had a right to re-enter when the term expired and to maintain an action for possession without previous notice or demand." It is also said in Canning v. Fibush , 77 Cal. 196: "And inasmuch as the lease expired by its own limitation there was no necessity of a notice to terminate it.. .. This being the case, we do not see how the defendants had any right to continue in possession, and, if they had no such right, why the plaintiff should not recover the premises, with damages for the detention." In Perine v. Teague , 66 Cal. 446, the syllabus is as follows: "A tenant who enters and continues in possession of the demised premises under a written lease until the expiration of the term, does not thereafter become a tenant at will by refusing to surrender that possession and by holding over without the consent of the lessor."

         For the foregoing reasons the judgment is affirmed.

Summaries of

Kuhn v. Smith

Supreme Court of California
Sep 1, 1899
125 Cal. 615 (Cal. 1899)
Case details for

Kuhn v. Smith

Case Details

Full title:A. C. KUHN et al., Respondents, v. CHARLES C. SMITH, Appellant

Court:Supreme Court of California

Date published: Sep 1, 1899


125 Cal. 615 (Cal. 1899)
58 P. 204

Citing Cases

Ryland v. Appelbaum

[1] It is well established that it is the duty of the tenant as soon as his tenancy expires by its own…

Wilson v. Sadlier

Under these circumstances we do not see how it can be said with reason that there was a termination of the…