Schwarze v. Mahoney

Paterson, J. This is an action of unlawful detainer. Judgment was entered in favor of the plaintiff for the sum of $540, and costs of the action; the defendant moved for a new trial, which motion was denied, and thereupon he appealed to this court from the judgment, and from the order.

The principal point made on this appeal is, that the respondent, being a married woman, cannot recover,—that the rents, if any due, are community property, for which the husband alone can sue.

. This objection to the plaintiff’s right to maintain the action cannot be considered, because there is no demurrer, and there is nothing in the answer indicating an intention on the part of the defendant to raise the question of the plaintiff’s capacity to sue. The defendant states in his answer that “ plaintiff is a married woman, wife of one F. J. Schwarze; that said Schwarze is a tenant of the upper portion of the premises known as 1901 Polk Street, a portion of the same premises wherein the premises described in the complaint are situated, but denies that this plaintiff ever was in the occupation of the premises described in the complaint, or that she ever had any title or interest therein.” This is clearly [134]insufficient as a plea in abatement, or of want of capacity to sue.

The right of a married woman to enter into any transaction with any other person which she might if unmarried (Civ. Code, sec. 158) gives to her a correlative right to enforce (to the same extent that she could if unmarried) any obligation which she may have received from such other person as the consideration for such transaction, and whenever, in a transaction with a married woman, another person has received from her any property or advantage for which he has given his obligation, the burden is upon him to show that the transaction was entered into by her as the agent of the community, and not for herself, if he would resist his obligation upon the ground of her marriage. (Wetherly v. Straus, 93 Cal. 287.) In the case at bar, the record shows that the premises described in the complaint, together with the upper story of the building in which they were situated, were leased to the plaintiff by a duly authorized agent, and that while she was in the actual, exclusive, and lawful possession thereof, she leased the lower portion of the house to the defendant at a rental of fifteen dollars per month. The defendant attempted to show that he entered into possession of the premises by virtue of his own right therein, but in this he failed. He stated in his testimony that he asked Mrs. Schwarze about the place, and what the rent would be; that she told him it would be fifteen dollars per month, and he replied that he would take it; that she told him he could take possession of the entire lower floor, as she had no use for the kitchen; he attempted to avoid the effect of this testimony by saying that he did not promise that he would pay the rent; that he “ never promised to pay Mrs. Schwarze, or anybody else, the rent.” Of course the court below did not for a moment listen to such a subterfuge.