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McKissick v. Ashby

Supreme Court of California
Jun 3, 1893
98 Cal. 422 (Cal. 1893)


         Department Two

         Hearing In Bank Denied.

         Appeal from a judgment of the Superior Court of Lassen County, and from an order denying a new trial.


         The complaint fails to state facts constituting a cause of action. If it is intended as a complaint in unlawful detainer, it is defective for failing to allege a demand for possession of the premises after the expiration of the term. (Ray v. Armstrong , 4 Cal. 208; Rogers v. Hackett , 49 Cal. 121; Code Civ. Proc., secs. 1161, 1162.) As a complaint in ejectment it is also insufficient as it fails to allege that the defendant was in the adverse possession of the land, or withheld it. (Payne v. Treadwell , 16 Cal. 223; Haight v. Green , 19 Cal. 113; Marshall v. Shafter , 32 Cal. 177; McCarty v. Yale , 39 Cal. 585; Keller v. Ruiz , 48 Cal. 638; Garner v. Marshal , 9 Cal. 268; Noe v. Card , 14 Cal. 577; White v. Moses , 21 Cal. 43; Buhne v. Corbett , 43 Cal. 264; Hussman v. Wilke , 50 Cal. 250; Shaeffer v. Matzen , 59 Cal. 652; Easton v. O'Reilly , 63 Cal. 305.)

         Spencer & Raker, Clarence A. Raker, and C. McClaskey, for Appellant.

          Goodwin & Goodwin, for Respondent.

         The plaintiff was not required to give defendant any notice or make any demand for the premises before suit, as the defendant's rights under the lease terminated prior thereto. (Civ. Code, sec. 1933; Moore v. Morrow , 28 Cal. 551; Stopperkamp v. Mangeat , 42 Cal. 316; Canning v. Fibush , 77 Cal. 196.) Not only had his lease terminated, but by his answer he ignored all tenancy and made himself a trespasser. (Smith v. Ogg Shaw , 16 Cal. 89.)

         JUDGES: Belcher, C. Searls, C., and Haynes, C., concurred. McFarland, J., De Haven, J., Fitzgerald, J.


          BELCHER, Judge

         [33 P. 730] This action is in the nature of ejectment, and was commenced April 22, 1889.

         It is alleged in the complaint that the plaintiff now owns, and for more than eight years he and his grantors have owned, certain described lands in Lassen County; that defendant leased the said lands of plaintiff from year to year, commencing on the first day of March, 1886, down to the first day of March, 1889, for the sum of one hundred and eighty dollars rent, which defendant agreed and promised to pay plaintiff annually therefor; that on the twenty-seventh day of February, 1889, plaintiff duly notified defendant that he would not renew the lease, and requested him to vacate and surrender the premises; that defendant refused and still refuses to vacate the premises or to deliver the same to the plaintiff, and has withheld and still withholds the possession thereof from the plaintiff, and has ousted and ejected plaintiff therefrom, to his damage in the sum of fifty dollars; that defendant has failed and refused to pay to plaintiff the said rent for the year next before the first day of March, 1889, amounting to one hundred and eighty dollars, and that the whole of that sum is due and owing to plaintiff from defendant. Wherefore judgment is asked that defendant be ejected from the said lands, and the plaintiff restored to the possession thereof, and also for damages in the sum of fifty dollars, and for rents due in the sum of one hundred and eighty dollars, with costs. A general and special demurrer to the complaint was interposed by the defendant, but what ruling, if any, was made upon it does not appear from the record. An answer was also filed by defendant denying all the averments of the complaint. The case was tried by the court without a jury, and the findings upon all the issues were in favor of the plaintiff, except that the damages were fixed at one dollar. Judgment was then entered in accordance with the findings, from which, and from an order denying his motion for new trial, the defendant appeals.

1. Appellant contends that the complaint fails to state facts sufficient to constitute a cause of action, because: 1. If it is 425 regarded as a complaint for unlawful detainer, then, in order to maintain the action, it was necessary that a demand for the possession of the premises should have been made after the expiration of the term, and no such demand is alleged to have been made; and 2. If it is regarded as an ordinary complaint in ejectment, then an averment that defendant was in possession of the demanded premises or of some part thereof, at the time of the commencement of the action, was necessary, and that no such averment is made. Section 1161 of the Code of Civil Procedure, cited by appellant, provides as follows:

" A tenant of real property, for a term less than life, is guilty of unlawful detainer

         " 1. When he continues in possession, in person or by subtenant, of the property or any part thereof, after the expiration of the term for which it is let to him, without the permission of his landlord, or the successor in estate of his landlord, if any there be; but in case of a tenancy at will, it must first be terminated by notice as prescribed in the Civil Code."

         Here the defendant was not a tenant at will, but for a fixed term which expired March 1, 1889. The hiring of a thing terminates at the end of the term agreed upon. ( Sec. 1933, Civ. Code.) The notice served was only to the effect that plaintiff would not renew the lease and that defendant must give up possession of the property. Such a notice was not necessary, but it served to inform defendant that, if he continued in possession of the property after the expiration of the term for which it was let to him, he would do so without the permission of his landlord, and would be guilty of unlawful detainer. Under the facts stated, we think the plaintiff had a right to re-enter when the term expired, and to maintain an action for possession without previous notice or demand. ( Sec. 793, Civ. Code; Canning v. Fibush , 77 Cal. 196.) And if the complaint is regarded as an ordinary one in ejectment, we think the same conclusions must follow. It alleges, in substance, that plaintiff leased the demanded premises to the defendant, that the lease had expired, and that defendant refuses to vacate the premises and "has withheld and still withholds the possession thereof from the plaintiff." This clearly implies that defendant is in possession; and it must be held a sufficient averment of that fact, certainly in the absence of a demurrer that the complaint is ambiguous or uncertain in that regard; but no such objection was taken.

         2. Appellant also contends that the findings were all contrary to the evidence, and not justified thereby. There was, however, evidence tending to support the findings, and, under the well-settled rule as to conflicting evidence, we think it must be held sufficient here. The defendant did not in giving his testimony deny, so far as we can discover, that he held the land in controversy during the years 1886 and 1887 under leases from the plaintiff, but he claimed that the lease was not renewed for the year 1888. Admitting this to be so, still he could not [33 P. 731] deny the plaintiff's title without first surrendering to him the possession, and this he had evidently failed and refused to do.

         3. When the plaintiff was upon the stand as a witness in his own behalf his attorney asked him the following questions: "State whether or not since he went on it in 1886, up to the time you made the demand on him, he continues to occupy and use the land? State whether or not the defendant still occupies this disputed tract of land?" The questions were objected to as irrelevant, incompetent, and immaterial, and the objections were overruled and exceptions taken. It is urged that these rulings were erroneous, but we see no error in them. It was entirely proper for the plaintiff to show that defendant continued in the occupancy of the land and was withholding its possession from him.

         4. The plaintiff was permitted, over the objections of defendant, to read in evidence a copy of the record in the United States land office at Susanville, certified by the register of the office to be a true and correct copy, showing that on May 15, 1880, one John P. McKissick had entered the lands in question as desert lands; and also a deed executed by the said McKissick on December 9, 1881, conveying the said lands to the plaintiff. It is urged now that the copy offered was not competent evidence to show the entry; that the only competent evidence for that purpose would have been a certified copy of the certificate of purchase or receiver's receipt, the original of which was in the general land office at Washington; and that the deed was not admissible for the reason that the plaintiff failed to connect himself with the government title or show that the title had passed from the government.

         We see no prejudicial error in the rulings complained of under this head. The object undoubtedly was to show privity with the government, but without such showing the action might be maintained.

         We advise that the judgment and order be affirmed.

         For the reasons giving in the foregoing opinion, the judgment and order are affirmed.

Summaries of

McKissick v. Ashby

Supreme Court of California
Jun 3, 1893
98 Cal. 422 (Cal. 1893)
Case details for

McKissick v. Ashby

Case Details

Full title:JACOB McKISSICK, Respondent, v. THOMPSON ASHBY, Appellant

Court:Supreme Court of California

Date published: Jun 3, 1893


98 Cal. 422 (Cal. 1893)
33 P. 729

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