Bacon v. Glenn

California Court of Appeal Jan 22, 1932 No. Docket No. 7054.Published

Before: Tappaan

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Holding. The court held that a cause of action for trespass and breach of the covenant of quiet possession arising from a permanent ouster is complete at the time of the initial entry, and the statute of limitations begins to run from that date.

Issues

Whether a cause of action for breach of the covenant of quiet possession and trespass is barred by the statute of limitations when the action is filed more than four years after a permanent ouster.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Plaintiff’s cause of action was complete upon the breach in August, 1924, and he never had, or regained possession of the premises.”

“In such a case the statute of limitations runs from the time of the original entry.”

“The cause of action in the present case arose in August, 1924, and the bar of the statute of limitations was complete in August, 1928, long prior to plaintiff’s instituting the present action.”

TAPPAAN, J.,

pro tem.

The plaintiff here appeals from a judgment entered upon an order sustaining a demurrer to his complaint without leave to amend. The third ground of demurrer, that the cause of action set up in the complaint is barred by sections 337, 338, 339, of the Code of Civil Procedure, is the only question here presented.

The complaint sets forth that the plaintiff leased from defendant certain real property for the term of one year. The lease, a copy of which is attached to the complaint, gave to plaintiff an option to an additional term of four years. Defendant, after the expiration of the first year,

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evicted, ousted and drove plaintiff from the leased premises, although plaintiff theretofore had notified the defendant that he would exercise his option for the additional term. Plaintiff, upon this appeal, takes the position that the implied covenant for quiet possession under the lease (sec. 1927, Civ. Code) is a continuing covenant for the term of the lease; that defendant’s breach of the covenant was temporary in character, and that his cause of action was in no way limited by the date of the breach, but continued during the additional term of four years.

The act of which plaintiff complains occurred some time in the month of August, 1924. The complaint herein was filed June 14, 1929. It nowhere appears that plaintiff, subsequent to August, 1924, was ever in possession of the leased premises. To quote from plaintiff’s complaint: “until on or about the last of August, 1924, at which said time said lessor ousted and evicted the lessee from said premises, and ever since said date during the entire period of said lease has continuously prevented this plaintiff from entering upon said premises . . . ”. At another place in the complaint plaintiff places the date of eviction as August 1, 1924. The act of which plaintiff complains constitutes a trespass, and as the complaint alleges, “defendant evicted, ousted and drove the plaintiff from said premises” would seem to come within the common-law classification of trespass

quare clausum fregit. (Reiner

Schroeder,

Bacon v. Glenn

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TAPPAAN, J.,

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