Tivnen v. Monahan

Belcher, C. C. —Action for forcible entry and detainer. The complaint contains two counts. In the first, it is alleged that the plaintiff was in the actual possession of a certain building, and that on or about the sixteenth day of February, 1884, the defendant, with force and violence and with strong hand, broke and entered into the building, and took, and has ever since held, possession thereof. In the second, it is alleged that the plaintiff was, and for more than five days had been, in the peaceable and actual possession of the lot on which the building before mentioned stood, and that during his temporary absence therefrom the defendant unlawfully entered upon and took possession of the premises, and after demand made by plaintiff for the surrender thereof, refused for the period of more than five days, and still refuses, to surrender the same.

The case was tried by the court without a jury, and among other things, the court found that for more than five years the defendant had claimed in good faith to be the owner of the premises in controversy, and for himself, and as the duly appointed guardian of his minor daughter, to whom he conveyed the property in March, 1882, had exercised acts of dominion over the same; that plaintiff was never in the peaceable possession of the premises; that plaintiff claimed to be the owner of the premises, but had never been in possession or occupation of any portion thereof, except a building which a tenant of defendant erected thereon and sold to plaintiff in December, 1883, without the knowledge of defendant, and into which plaintiff placed his buggy and then caused the same to be locked up; that defendant did not with force or violence, or with strong hand, or unlawfully, enter upon or break into the building or premises; that defendant did not at any time receive any written or other notice or demand from plaintiff to deliver up to him the possession of the said premises, but did receive a notice to remove from and deliver up to plaintiff the [133]possession of the said building, which he refused to do; and that plaintiff had sustained no damage.

Upon the findings judgment was entered in favor of the defendant, and the appeal is from that judgment and an order denying a new trial.

It will be observed that the first cause of action set out in the complaint is for a forcible entry into a house under subdivision 1 of section 1159 of the Code of Civil Procedure, and the second cause of action is for a forcible detainer of real property under subdivision 2 of section 1160 of the same code.