George v. Silva

Searls, C. — This is an action of ejectment, to recover possession of certain rooms, or portion of a house and lot in Hollister, county of San Benito.

Plaintiff had judgment, and defendant appeals, as well from the judgment as from an order denying a motion for new trial, and from an order refusing to strike out costs.

The complaint counts upon a lease to defendant by [273]one Maria Lenar Serpa, the grantor of plaintiff, for a term of five years from April 15,1882, at a nominal rent of one dollar per year. The lease contained a proviso that the lessor should have the right at any time to sell the property, and upon such sale being made, the lease was to become void, and defendant was to deliver up and surrender the property at once.

The complaint avers a sale of the property to plaintiff, demand and refusal of defendant to surrender possession, etc.

The answer, after denying most of the allegations of the complaint and attacking the good faith of the purchase by plaintiff, proceeds by way of cross-complaint to set out that the property was purchased in part with the funds of defendant, and a deed taken in the name of Maria Lenar Serpa, for the joint benefit of herself and defendant; and avers an equitable title in defendant to the extent of one half of the premises, and seeks to have a trust in defendant’s favor declared to the extent of said one half of the premises.

Maria Lenar Serpa, who has since intermarried with one Benevides, was on petition of defendant made a party to the action.

The answer contains some matters not important to the ownership of the property.

The cause was tried by the court, a jury having been expressly waived. No demand being made for a trial as to the equitable defenses set up, the whole was tried together; and the facts as found are in favor of plaintiff and against defendant upon all the material issues presented by the complaint and answer, and cross-complaint and answer thereto.

Defendant cannot, after having been silent when he should have spoken, and after having thus assented to a trial of the whole cause, be heard after trial, to urge that the equitable defense should have been first tried. His conduct amounted to a waiver of his right to have [274]