Toplitz v. Standard Co.

LENNON, P. J.

This is an appeal upon the judgment-roll alone from a judgment entered in favor of the defendant in an action of unlawful detainer. All of the material allegations of the plaintiffs’ complaint were admitted by the failure of the defendant’s answer to deny them. The defendant, however, as a defense to the action pleaded the existence of a mortgage executed by the defendant to the plaintiffs as security for the rent reserved in the lease under which the defendant held and occupied the premises in controversy.

The court below, in substantial accord with the admitted allegations of the complaint, made its findings of fact in favor of the plaintiffs in so far as concerned the execution of the lease and the breach of the covenant to pay the rent reserved; but further found that a mortgage given as security for the payment of the rent had not been resorted to and exhausted by the plaintiffs prior to the institution of the present action; and from the latter finding deduced the conclusion of law “that by reason of the provisions of section 726 of the Code of Civil Procedure of the state of California the action is barred and cannot be maintained.”

The code section referred to provides that “There can be but one action for the recovery of any debt, or for the enforcement of any right secured by mortgage upon real or personal property ...” (Code Civ. Proc., sec. 726). The lower court’s conclusion of law cannot be sustained. Unlawful detainer is primarily a possessory action, which cannot be defeated or delayed by the fact that the landlord has taken security for his rent, without destroying the manifest design of the legislature (Code Civ. Proc., sec. 1161) to provide a summary remedy for the recovery of the possession of the premises withheld by a tenant in violation of the covenants of a lease or other agreement. Incidentally a judgment for the plaintiff in an action of unlawful detainer may award such actual damages as may have been occasioned by a withholding over after a breach of the covenants of the lease; and in addition may, if the circumstances of the case justify it, award to the plaintiff by way of punitive damages a sum equal to treble the amount of the rent then due (Code Civ. Proc., sec. 1174); but in no sense is an

[577]

action of unlawful detainer one of debt. Consequently it cannot be said that the present action is one for the recovery of a debt or the enforcement of a right secured by the mortgage in controversy.