Tracy v. Donovan

CONREY, P. J.

This is an action of unlawful detainer, wherein the plaintiff appeals from a judgment of nonsuit.

On the first day of October, 1913, the defendant entered upon the farm of the plaintiff, under a parol agreement of lease for a term of two years from that date, and has ever since remained in possession and farmed the land. The plaintiff was to receive as réntal one-fourth of the crops raised on the land. This rental for each of those two years was paid. On September 29, 1915, the plaintiff visited the premises in question and orally stated to the defendant that she wanted him to vacate and that she had promised the place to another party. The plaintiff never served any written notice or demand upon the defendant until the twenty-seventh day of October, 1915. On that day she did serve upon the defendant a written demand for immediate surrender to her of the possession of said premises. The defendant having failed to comply with this demand, the plaintiff commenced this action on the ninth day of November, 1915. All of the foregoing facts appear from the evidence produced by the plaintiff at the trial of the case.

Respondent contends that where a tenant enters agricultural land under oral agreement for lease for two years, and

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occupies the land for the two years, rendering an annual rent which is accepted by the owner, the tenancy thus created must be terminated by the notice prescribed in section 789 of the Civil Code, before the tenant is liable to an action in unlawful detainer. This is the principal ground upon which the motion for nonsuit was made by the defendant and granted by the court. The rule at common law, as established by both English and American decisions, appears to be that, although a lease by parol may be void, as exceeding the period allowed by the statute of frauds, or the tenancy may, according to circumstances, be construed at will, or perhaps from year to year, it will nevertheless be governed, in respect to its termination, as well as to its other incidents, by the terms of the demise, and will expire at the time limited by those terms, without notice to quit. (See Taylor’s Landlord and Tenant, 9th ed., secs. 80, 469, 471, with cases there cited.) But in California this common-law rule has been changed by statute. “A tenancy or other estate at will,