Francis v. West Virginia Oil Co.

MELVIN, J.

Plaintiff appeals from an adverse judgment. By her pleading Mary F. Francis alleged that in the month of September, 1911, defendant had gone into possession of

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certain land in Kern County with her knowledge and acquiescence as her tenant at will; that on May 2,1912, she had served notice requiring the West Virginia Oil Company to vacate the premises, but that said corporation had refused to accede to her demand. She alleged her right to the possession of the land and prayed for its restitution.

Defendant admitted possession and refusal to surrender the land to plaintiff but denied the alleged tenancy at will.

At the trial it clearly appeared that the defendant had gone into possession after the execution of certain contracts of sale. The first of these contracts was made by Mrs. Francis and Mr. E. S. Good. The latter assigned all of his rights under this agreement to the West Virginia Oil Company and in January, 1912, a new writing was executed by plaintiff and that corporation ratifying the assignment and substituting the West Virginia Oil Company as vendee in Mr. Good’s place. This agreement called for the payment of stipulated sums at stated times, and the plaintiff in her testimony said that she bad received fifteen thousand dollars on the purchase price and six hundred dollars by way of interest. It was also in evidence that the defendant had expended something more than eighty-five thousand dollars in developing oil on the property.

It seems to be the theory of the plaintiff that when the defendant corporation defaulted in one of the payments on the purchase price it at once became a tenant at will subject to removal from the land by the summary method of a suit in unlawful detainer. In this she is in error. The true rule with reference to the existence of the relation of landlord and tenant necessary to support an action in unlawful detainer is thus expressed in Jones on Landlord and Tenant, section 563:

“The action of unlawful detainer can be maintained only where the relation of landlord and tenant subsists between the parties to the action, and hence it becomes material to determine whether parties stand in that relation to each other. While it is not necessary to show an express demise or letting of lands to sustain the action, the facts must show impliedly at least that the defendant occupies as tenant of the plaintiff and this must be something more than a mere