Bowen v. Hickey

CONREY, P. J.

In this action of forcible entry and detainer, the plaintiff appeals from a judgment entered in favor of the defendant.

The complaint alleged that on the twenty-third day of November, 1912, and for more than four years previous

[299]

thereto, plaintiff was in the peaceable and actual possession and entitled to the possession of the real property described in the complaint; that on the twenty-third day of November, 1912, during the absence of the plaintiff therefrom, the defendant unlawfully entered upon said land and took possession of the same. On these allegations the court made its findings in favor of the defendant. The evidence is not sufficient to support these findings, but, on the contrary, without conflict, sustains the allegations in the complaint.

[1]

The complaint next alleged that on the evening of the twenty-third day of November, 1912, plaintiff made a demand in writing upon the defendant to deliver up to plaintiff the possession of said premises, but the defendant refused and still refuses after a period of five days to surrender possession, etc. The evidence shows, and the court found, that the notice was served as stated. But the court found that “thereupon, pursuant to said demand, defendant surrendered possession thereof to plaintiff, and that defendant does not still unlawfully hold or continúe in possession of same, against the form of the statute in such cases made or provided.” The evidence is sufficient to sustain this finding. Immediately upon service of the said notice, the defendant and the persons with him left the premises, taking with them their wagon and implements and everything that they, had brought to the land. The defendant testified that it was his intention at that time to surrender possession of the land to the plaintiff, and that he did not at that time gave any thought as to his future action with reference to the land.

[2]

It is true that the evidence further shows that twenty-eight days later the defendant again went into possession of the premises and still remained there at the time, of the commencement of this action on January 13, 1913. It does not appear that any notice demanding possession by the plaintiff was ever served other than the notice of November 23, 1912. At the time of said transactions in November and December, 1912, the plaintiff was occupying a house erected by him on a part of the premises in question and his occupancy thereof was not disturbed by the defendant. Since the evidence justified the court’s finding in favor of the defendant to the effect that he surrendered possession to the plaintiff