Heffernan v. Davis

This is an action of unlawful detainer. The cause was tried by the court and defendant had judgment. Plaintiff moved for a new trial which was denied and she appeals from the judgment and order.

It is alleged in the complaint that, on or about March 25, 1906, plaintiff's intestate by lease demised and let to defendant the premises described as follows: N1/2 of sec. 22, T. 40 N., R. 4 W., M. D. M., situated in Siskiyou County, a copy of which said lease is as follows:

"This certifies that I have this day, March 25th, 1906, leased to J. T. B. Davis, the Van place on sec. 22, T. 40, N. R., 4 W. M. D. M. for the term of six years from date, at a yearly rental of one hundred and fifty dollars, per year, payable yearly in advance. The tenant to improve the place and keep in good order.

"J. O. WELSH." *Page 297

It is further alleged that "defendant went into possession and occupation of said premises by virtue of said lease and still holds and occupies the same"; that no part of the said yearly rental has been paid and the whole thereof is due and unpaid, amounting to seven hundred and fifty dollars; that, on November 14, 1912, "within one year after the last yearly rent became due as aforesaid, by the terms of said lease, demand in writing was made by the plaintiff of the defendant for the payment of the said rent amounting to seven hundred and fifty dollars as aforesaid, or that he surrender the possession of said premises . . . but said defendant has neglected and refused, for the space of more than three days after said demand as aforesaid, to quit the possession of said demised premises or pay the rent thereof, due and unpaid as aforesaid, and the same still remains due and unpaid."

Defendant, in his answer, denies that the said Welsh let to defendant the said premises "by a lease a copy of which is attached to said complaint or by any written lease whatever"; denies that defendant "went into possession of said property under said lease" or that "he still holds or occupies the said premises under said lease or at all; and in this regard, this defendant says that defendant never entered into any written contract for the lease of said or any premises from the said J. O. Welsh and further says that this defendant never subscribed to any agreement, note, or memorandum of lease, for the said premises described, or for any other premises from the said John O. Welsh; and that said pretended agreement set out in said complaint is invalid under section 1973 of the Code of Civil Procedure of the state of California"; denies that any sum is due under said lease; admits the demand as alleged in the complaint "and states in this regard that said defendant immediately after the receipt of said demand for possession delivered up and quit the possession of said premises and since said time has no longer been in possession of same."