Shelby v. Houston

California Supreme Court Jul 1, 1869Published

Before: Sanderson

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Holding. The court held that a plaintiff may maintain an action for forcible detainer under the third section of the Statute of 1866 without proving personal residence on the premises, provided they held peaceable and undisturbed possession within five days of the entry. Furthermore, the court ruled that a judgment will not be reversed for a variance between the complaint and the proofs if the complaint states any cause of action, as the statute mandates amendments to conform to the evidence.

Issues

Whether a complaint under the Statute of 1866 is fatally defective for variance if it fails to state the specific cause of action found by the court.
Whether 'actual occupant' under the statute requires personal presence or residence on the premises.
Whether a judgment can be disturbed on appeal when the findings are silent on specific facts necessary to support the judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is obvious that, under the very liberal provisions of the tenth section of the statute, We cannot reverse a judgment merely upon the ground that there is a variance between the complaint and the proofs”

“we hold that the plaintiff might have had “a peaceable and undisturbed possession” of the premises in question within five days before the entry, notwithstanding the fact that he did not reside in the house during any portion of that time.”

Synopsis

Causes op Action under the Statute of 1866 in Relation to Forcible Entries and Detainees.—They are, First—Forcible entry; Second—Forcible detainer, of which there arc two kinds—one defined in the second, and the other in the third sections; and fraud, as an adjunct of each.

Complaint in Forcible Entry.—Forcible entry, forcible detainer in both forms, and fraud, may all be united in the same complaint, but should he separately stated; and, if not so stated, the complaint is bad on demurrer, but the objection is waived if not taken by demurrer.

Variance between Complaint and Testimony in Forcible Entry—Is immaterial, and if the complaint charges one offense, and the testimony makes another, the Court should direct the complaint to be amended so as to conform to the testimony; but if this is not done, the judgment will not, for that reason, bereversed, but the Court below will be directed to cause the complaint to be amended, if the record shows that upon request it refused to do so, hut not otherwise.

Appeal on Findings Only.—If the appeal is allowed to stand upon the findings, the judgment will not ho reversed, because all the facts requisite to sustain it have not been found; on the contrary, the missing facts will he presumed to bo consistent with the judgment.

Idem.—Before a judgment can be reversed, when the appeal stands upon findings only, it must appear that the facts which have been expressly found, or some of them, arc repugnant to the judgment.

Idem.—If the findings in an action under the statute in relation to forcible entries and detainers shows affirmatively that the entry or detainer was without force, violence, fraud or menace, they are repugnant to the judgment, so far as it may ho for a forcible entry or forcible detainer, as defined in the second section of the statute, but not so far as it may he for a forcible detainer, as defined in the third section.

Unlawful Entry—Is a peaceable entry made in had faith—that is to say, without . any bona fide claim of a legal right to enter.

Idem.—A peaceable entry in good faith—that is to say, in the belief of -a legal right to enter, is not unlawful, although it bo wrongful.

Proof of Title in Unlawful Entry—Is allowed for the purpose of showing that the entry was made in good faith, hut not for the purpose of trying title. Occupant.—To be an “ occupant,” within the meaning of the third section-of tho statute against forcible entries, it is not necessary to he present in person, or to be actually residing upon the premises—to he in the “peaceable and undisturbed possession” is sufficient.

Appeal upon Findings in Unlawful Entry.—If an appeal stands upon the findings, and they fail to show whether the alleged unlawful entry was made in good or had faith, and the judgment he for the plaintiff; it will be presumed that the entry was in badfailh, and the judgment he accordingly affirmed.

Sanderson, J., delivered the opinion of the Court: This action was brought under the Statute of 1866, in relation to forcible entries and unlawful detainers. (Stats. 1865—6, p. 768.) The first section of that statute defines a forcible entry; the second defines a forcible detainer; and the third declares that an unlawfid entry, if made in the night time, or during the absence of the occupant of the premises, followed by a demand and a refusal to surrender for a period of five days, shall be deemed to be a forcible detainer; provided, that a party shall be deemed to be an actual occupant of lands within the meaning of that section, if he has been in the peaceable and undisturbed possession of such lands within five days next preceding such unlawful entry.

The case was tried by the Court below without a jury, and has been brought here upon the pleadings, findings and con[418]elusions of law, which conclusions were in favor of the plaintiff.

The complaint contains two counts. The language of the first is, that at the time of the entry, “ the plaintiff was, ami for a long time before that, had been in the actual, peaceable and quiet possession, etc. * * * That while so in the actual, peaceable and quiet possession of said premises, the said defendants, on, etc., * * * in the night time, and during the absence of the plaintiff, with force and violence did break, etc., * * * and does fraudulently and violently detain the possession, etc., * * * and that said plaintiff afterward, on, etc., * * * went upon said premises and demanded possession, which was refused by the defendants, and still is refused.”

In the second count, an “ unlawful” entry, a “forcible” and “violent” expulsion of the plaintiff, and an “‘illegal, forcible and unlawful detainer,” are all alleged without any demand for a surrender of the possession.

It appears from the findings that the premises m question (a lot 25x100 feet, with a dwelling house, kitchen and shed thereon), are a part of a tract of land containing about ten and a half acres in the City of San Francisco, which tract was surrounded by a post and board fence, four boards high, most of which had been erected by the plaintiff, and the remainder by the occupants of adjoining lands ; that at the time of the entry, the plaintiff was residing with his family in another dwelling house erected by him within this enclosure ; that the dwelling house into which the entry was made was unoccupied, and there was no furniture therein, except a broom; that the doors were not fastened, and the entry was made without force, violence or menace of any kind, but was made in the absence of the plaintiff, and without his knowledge; that the entry was made without fraud, and the possession was retained without fraud, force, violence or menace of any kind; and that a demand for the surrender of the possession was made by the plaintiff, and the defendants had failed to comply with the demand for a period of five days thereafter.

Shelby v. Houston

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