Markham v. Fralick

CURTIS, J.

This action is one in unlawful detainer. The property in controversy was under a ninety-nine year lease. The lessees, the defendants and respondents in this action, were in default in the payment of some $30,000 rent besides taxes which they had agreed to pay. The leased premises were a city block in Hollywood on which were located some fifteen dwellings or bungalows occupied by ten or twelve subtenants. The defendants were in possession of the property only through their subtenants. Their agent collected the rents and paid, them to his principals, the defendants. While the defendants were in default in the payment of said rent and taxes, the plaintiff, the owner of said property, served written notice on the defendants to pay the rent and taxes due and unpaid, or quit and surrender the property to the plaintiff within three days after the service of said notice. No such notice, nor any notice whatever, was ever served by plaintiff on any of the subtenants. Within three days after the service of said notice, the defendants served written notice upon the plaintiff and her attorney of their surrender of the premises to the plaintiff as demanded by the notice served upon the defendants. They also notified their agent not to collect any further rent from said subtenants, and their said agent also notified said subtenants and the plaintiff that he was no longer the agent of the defendants and had no authority to act as the -agent of the defendants or either of them in respect to said property.

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Thereafter the plaintiff instituted this action in unlawful detainer against the defendants to recover possession of said premises and the rent and taxes due under the terms of said lease. There is no dispute as to the facts related above. The defendants, as an affirmative defense to said action, alleged their surrender of the possession of said premises to the plaintiff within three days after the service upon them of plaintiff’s demand that they pay said rent and taxes or surrender and quit said premises. The court found in accordance with this affirmative defense of the defendants, and rendered judgment in their favor that the plaintiff take nothing by said action. The plaintiff has appealed from this judgment.

In asking for a reversal of the judgment, the appellant first contends that 'the lessees, the defendants and respondents herein, were guilty of unlawful detainer after notice to quit when the subtenants of the lessees, who were not served with notice to quit, continued to occupy said property after the lessees, in response to plaintiff’s demand either to pay the rent due or surrender possession, served notice on the landlord that they surrendered possession of said premises in compliance with said demand. Section 1161 of the Code of Civil Procedure, defining who are guilty of unlawful detainer, might seem to indicate that notice must be served upon the subtenants as well as upon the tenant before the landlord could maintain an action against the tenant for unlawful detainer. This section was construed in conjunction with section 1164 of the same code in the case of