Uridias v. Morrell

By the Court, Shafter, J. This action is based upon the thirteenth section of the Forcible Entry and Detainer Act, as amended by the third section of the Act of 1862. The complaint alleges that the plaintiff demised the premises to the defendant for one year ensuing the first of October, 1860, at the yearly rent of two dollars per acre ,• that on or about the first of October, 1860, the defendant entered into possession of the premises under the lease, and that after the expiration of the term the defendant failed and refused to deliver the possession of the premises to the plaintiff, or to pay the rents therefor; and that when such delivery was demanded, in writing, on the third of June, 1862, the defendant neglected and refused to deliver. The complaint was filed July 16,1862.

The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and thereafter the case was tried upon the issues of fact. The verdict of the jury was for the plaintiff, and the defendant appeals from the judgment and from an order denying his motion for a new trial.

I. It is claimed that the order overruling the demurrer was erroneous.

It is urged that there is no allegation in the complaint that the holding over on the part of the defendant was wrongful, [35]and that in the absence of such allegation it must be presumed that the holding over was under some new and substantive agreement, or at least by leave and license of the plaintiff.

When a tenant holds over after the expiration of his lease, he is regarded by the common law as a tenant at sufferance; but this estate may be destroyed whenever the true owner shall make an actual entry oh the lands and oust the tenant; for before entry he cannot maintain an action for trespass against the tenant by sufferance as he might against a stranger; and the reason is, because the tenant being in by lawful title, the law, which presumes no wrong in any man, will suppose him to continue upon a title equally lawful, unless the owner of the land, by some public and avowed act, such as entry is,' will declare his continuance to be tortious. (2 Blk. Com. 150.)

Further: section thirteen, as amended by the Act of 1862, assumes the rule of the common law to be as above stated; for it provides that when a tenant holds over after the expiration of his term, that a demand for delivery of possession “maybe made at any time within a year after the termination of the lease;” and if demand is so made, that thereupon the lessor may proceed to expel the tenant. The only change made in the common law by the Act of 1862 lies in the fact that it dispenses with formal entry and substitutes therefor a written demand.