Silvius v. Scholes

WORKS, J.

This is an action of unlawful detainer. Plaintiff had judgment and defendant appeals.

Appellant’s first contention is that a finding of the trial court that the relation of landlord and tenant existed between the parties is not supported by the evidence. Although the evidence was not without contradiction there was testimony tending to show the following facts: The property which is the subject of the action was purchased by respondent with the aid of appel

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lant, who advanced for the purpose a certain sum of money. It was understood that upon the acquisition of the place appellant might occupy it until the amount advanced by her should be applied

in toto

as rent at the rate of a certain amount per month. She did occupy the premises until the amount of her advance was exhausted pursuant to the understanding. This action was commenced thereafter. Under these circumstances we cannot avoid the conclusion that appellant was a tenant of respondent, at least after the expiration of the period during which she was to occupy the property under her advance. Her status after that time had run is well described by the usual definitions of the word “tenant,” even in its most restricted sense (38 Cyc. 123; 16 It. O. L., tit. “Landlord and Tenant,” par. 2). The finding had ample support in the evidence.

Appellant insists that the trial court erred in refusing to admit certain evidence under a part of appellant’s answer which she characterizes as a plea in abatement, and this is the sole remaining point made. To be more specific, she contends that her pleading set up the plea of former action pending. The part of the answer which is now in question presented the claim of appellant that the real arrangement between her and respondent was that she was to have an undivided one-half interest in the property in suit after its acquisition, instead of a mere leasehold interest to use up the amount advanced by her to aid in completing the purchase, and that respondent fraudulently took title in severalty to the premises in his own name. The pleading then alleged that appellant had instituted an action for the purpose of establishing her one-half interest in the property, that respondent had answered her complaint therein, and that a trial of the cause had been had. The pleading then averred “that judgment was rendered in favor of this defendant, and that thereafter, to-wit: on the 2d day of February,' 1921, there was filed and docketed in the above entitled court a judgment in favor of this defendant, adjudging her to be the owner of an undivided one-half interest in the property described in . . . plaintiff’s complaint.” It is especially to be noted that this pleading was filed April 14, 1921, seventy-one days after the entry of the judgment pleaded. As the statute allows but sixty days within which to appeal from a final judgment (Code Civ. Proc. sec.