Joy v. McKay

McKee, J. This is an action to recover possession of certain land and premises in Amador County, of which Jarius A. Joy died seised and possessed on the 14th of January, 1883. Plaintiff in the action is the sole heir and distributee of the estate of said decedent.

The action was commenced on the 17th of January, 1884. At the commencement of the action, the defendants, John McKay and his wife, were in possession, claiming their possession to be rightful, because of, — 1. A permissive occupancy of the premises under Jarius A. Joy in his lifetime; and 2. Of a deed from him to his sister, the defendant and intervenor, Clara A. McKay, the wife of the defendant John.

At the trial, evidence was given tending to show that in the year 1881, Joy, being owner and in possession of [446]the land, entered into a verbal agreement with McKay, his brother-in-law, to farm the land together for their mutual benefit; and that under that arrangement McKay entered upon the land and farmed it with Joy until the latter died in 1883.

After Joy’s death McKay continued to occupy and farm the land for his own benefit; neither the administrator of Joy’s estate, nor the plaintiff as the heir and distributee thereof, demanded possession from him; and it is contended that the plaintiff is not entitled to recover possession without proof of a demand.

But the defendant had not entered into possession under any agreement to pay rent; he was therefore not in possession as a tenant from year to year, entitled to notice to quit under section 1162 of the Code of Civil Procedure, and if 'the legal relation between him and Joy in the lifetime of the latter had been that of a tenant at sufferance or a tenant at will, that relation was terminated by the death of Joy; thereafter it ceased to exist, and the possession of the defendant became .wrongful against the plaintiff,-who as the sole heir and distributee of the estate of the original owner became vested with the right of entry to the land. No notice to quit nor any demand of possession was necessary on the part of the plaintiff before bringing an action of ejectment. (Kilburn v. Ritchie, 2 Cal. 145; S. C., 56 Am. Dec. 326; Hauxhorst v. Lobree, 38 Cal. 563; McCarthy v. Yale, 39 Cal. 585; Martin v. Splivalo, 56 Cal. 128; Civ. Code, sec. 793.)

The wife of the defendant derived no right or title to the land by the instrument in writing under which she asserted title.