Hihn v. Mangenberg
Before: Garoutte
Synopsis
Ejectment — Sufficiency of Complaint. — A complaint in an action of ejectment which alleges that the plaintiff is seised in fee of the realty, that the defendant is in possession, and against plaintiff’s will retains and withholds the possession thereof, states a cause of action.
Id.—Description of Land — Special Demurrer.—A description of the land sought to be recovered in ejectment, as being iu Sequel township, Santa Cruz County, state of California, and bounded on the northeast by Bay Avenue, on the southeast by the land of M. E. Land, and on the southwest and northwest by Soquel Creek, is sufficient as against a special demurrer, it not appearing to be impossible for the proper officer to identify the land in the field.
Landlord and Tenant — Lease — Expiration of Term. — Death of Lessee. — A lease for a fixed period expires at the end of that period, notwithstanding the death of the lessee before the expiration of the term.
Id. — Estate of Deceased Lessee — Administration — Surviving Widow. — The fact that no administration is had upon the estate of a lessee who dies before the expiration of the term cannot prolong the term; and his surviving widow cannot defend an action of ejectment on that ground after the lapse of the term fixed by the lease.
Garoutte, J. —This is an action of ejectment. The complaint was attacked by a general demurrer, and also by a special demurrer as to the sufficiency of the description of the land involved in the litigation.
The demurrer was overruled, and an answer filed by defendant denying the allegations of the complaint and setting up a lease by plaintiff to G. Mangenberg, the husband of defendant, and alleging that she was the surviving widow of said deceased lessee, and that no administration has been had upon his estate.
This is an appeal by the defendant from the judgment and order denying her motion for a new trial. The demurrer was properly overruled.
The complaint alleges that the plaintiff is seised in fee of the realty; that the defendant is in possession, and against plaintiff’s will detains and withholds the possession thereof.
After a careful review of the law upon this question, this court, in Payne v. Treadwell, 16 Cal. 243, held such [270]a complaint sufficient. To the same effect is Rego v. Van Pelt, 65 Cal. 254.
The demurrer to the complaint as to the insufficiency of the description of the realty was not well taken. The land was described as being in Soquel township, Santa Cruz County, state of California, and bounded on the northeast by Bay Avenue, on the southeast by the land of M. E. Land, and on the southwest and northwest by Soquel Creek.
We cannot hold from this. description in the complaint that it is impossible for the proper officer to identify the land in the field. (Carpentier v. Grant, 21 Cal. 140; Lawrence v. Davidson, 44 Cal. 180.)
The lease from plaintiff to appellant’s husband did not give her any greater right than the lessee would have had if he had lived.
The lease was for a fixed period of five years, which expired December 81, 1888; had the lessee been living at the expiration, of this period his tenancy surely would then have been at an end. (Canning v. Fibush, 77 Cal. 196.) The fact that the lessee died before the expiration of the lease could not prolong the term, and plaintiff had no interest or right in the property after the expiration of the lease.
We have carefully examined appellant’s exceptions upon the admission of certain evidence, and find no error in the rulings of the lower court.
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