Jones v. Durrer

Foote, C. — This action of unlawful detainer was brought to recover possession of a tract of land alleged to have been leased by the respondent and plaintiff to the defendant, for damages for its detention, and that an alleged lease be declared forfeited. The grounds claimed in favor of the plaintiff’s recovery are, that the defendant had forfeited his right to possession by virtue of certain conditions contained in the lease, and that plaintiff’s right of recovery was complete. The main ground upon wdiich the defendant resists plaintiff’s claim seems to be that he insists that the agreement set out in the complaint is not such as creates the relation of conventional landlord and tenant. The instrument in question is lengthy, so much so as to preclude its insertion here, but we have given it very thorough examination, and are satisfied that it comes strictly within the rule laid down in Walls v. Preston, 25 Cal. 59, and in Smith v. Schultz, 89 Cal. 526. It is a letting for a share of the produce of the land, and the increase of certain hogs, cattle, fowls,, etc. It provides certain conditions as to the cultivation of certain lands in corn, for the grubbing of other lands and putting it in alfalfa for the year 1891, for the making of butter and cheese, etc., “the party of the first part to own one half of all such produce, and one half of all the increase of said stock”; how, when the butter made is fit for market, the party of the first part “ shall in his discretion be entitled to one half, to be delivered to her, or the parties may sell together and divide the proceeds”:, [98]how, as to the increase of cattle kept on the ranch, “ there shall annually be a count taken thereof, and the same shall be branded in the private brand of each or any common brand, at the option of the party of the first part”; that the taxes on the “common property shall be paid by both.”

The owner of the land, the party of the first part, “lets the same,” with certain exceptions, to the party of the second part, the defendant here, for a period commencing in March, 1890, and ending on the first of October, 1894. The party of the second part is to take possession of the premises, which he did immediately, and is to take care of the same in a good husband-like manner, “ for and during the whole of said term,” and at the end of the term return them to the party of the first part in as good condition as he “ now receives them, reasonable wear and tear and damages by the elements excepted ”; also certain conditions as to the sale from the farm of certain steers.

Admitting the contention of the appellant that there is constituted under this agreement a tenancy in common of the parties as to the produce of the farm or the greatest part thereof, yet, under the views expressed in Walls v. Preston, 25 Cal. 59, and affirmed in Smith v. Schultz, 89 Cal. 526, there is no necessary inconsistency between, that relation as to the crops, and that of a tenancy of the land by the appellant. It was said in the case, first mentioned, at page 66: “ There is certainly no rule of law so absolute in its nature as to prevent the occu-. pant of land, under a contract which constitutes him a tenant in common with the' owner in the crops, from, having as entire a control over the premises during the-term, if the party so agree,.as a tenant covenanting to pay a money rent would have. In other words, from being a, tenant of the land under a lease, and at the same time a. tenant in common of the crop, or of some part of it.”