F. A. Hihn Co. v. Fleckner

California Supreme Court Feb 13, 1895 No. No. 15814Published

Before: Harrison

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Holding. In an ejectment action where the defendant admits the plaintiff's seisin and the defendant's possession, the plaintiff is entitled to recover possession unless the defendant establishes an affirmative defense. The court may also award damages for rents and profits from the commencement of the action to the date of judgment based on undisputed value allegations.

Issues

Whether the plaintiff is entitled to recover possession when the defendant admits seisin and possession but denies the withholding is wrongful.
Whether the court erred in failing to make a finding on the character of the defendant's possession when no evidence was offered.
Whether the court may award damages for rents and profits from the commencement of the action to the date of judgment.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Upon these admissions the court correctly found as a conclusion of law that the plaintiff is entitled to recover the possession of the land from the defendant.”

“If the defendant would claim the right to retain the possession this is an affirmative defense which it was incumbent upon him to establish.”

“the court was authorized to include in its judgment for damages the value of the rents and profits from the commencement of the action down to the time of rendering judgment.”

Synopsis

m Ejectment—Title and Possession—Admissions in Answer—Absence oe Evidence—Conclusión oe Law.—Where a complaint in ejectment alleges that the plaintiff is seised in fee simple of the demanded premises, and that the defendant is in the unlawful and wrongful possession thereof, and wrongfully withholds the possession from the plaintiff, upon an answer not denying the seisin of the plaintiff or the possession by himself, but merely denying that his possession and withholding is wrongful or unlawful, the conclusion of law follows that the plaintiff is entitled to the possession of the land.

Id.—Right of Possession—Affirmative Defense.—A defendant claiming the right to retain possession as against the owner of land must establish such right as matter of affirmative defense.

Id.—Omission of Finding—Character of Possession—Failure of Evidence.—Where the record shows that the defendant did not offer any evidence at the trial to show the rightfulness of his possession the failure of the court to make a finding as to whether his possession was rightful or wrongful does not constitute error.

Id.—Admission as to Rents and Profits—Computation of Damages.— Where the complaint alleges the annual value of the rents and profits of the land, and no issue is taken upon the allegations, the damage to the plaintiff is properly determined by a computation of the value alleged during the period of the withholding of the land by the defendant, down to the time of rendering judgment.

Id.—Denial of Damages—Legal Conclusion.—The denial in the answer that plaintiff had been damaged, without a denial of the alleged value of the rents and profits of the land, raises no issue of fact, and is only the denial of a legal conclusion.

Harrison, J. Ejectment. Appeal from an order denying defendant’s motion for a new trial.

1. The complaint alleges that the plaintiff is seised in fee simple of the demanded premises, and that the defendant is in the unlawful and wrongful possession thereof, and wrongfully withholds the possession from the plaintiff The defendant does not deny the seisin of the plaintiff or the possession by "himself, but denies that his possession and withholding is wrongful or unlawful. Upon these admissions the court correctly found as a conclusion of law that the plaintiff is entitled to recover the possession of the land from the defendant. (Payne v. Treadwell, 16 Cal. 220.) If the defendant would claim the right to retain the possession this is an affirmative defense which it was incumbent upon him to establish. (Payne v. Treadwell, supra.) As it appears from the record that he did not offer any evidence at the trial, the failure of the court to make a finding upon the character of his possession does not constitute error. (Winslow v. Gohransen, 88 Cal. 450.)

2. The allegation in the complaint that the rents and profits of the land are of the value of thirty-six dollars per year is not denied. The action was commenced September 1, 1893, and the court rendered its judgment February 3, 1894, awarding the plaintiff fifteen dollars for damages, “ estimated by the value of the rents and profits of said land during the detention and withholding from plaintiff by defendant.” As there was no issue upon the value of the rents and profits, the damage to the plaintiff was determined by a computation of this value during the withholding of the land by the defendant. The denial in the answer that the plaintiff had been damaged by such withholding made no issue of fact, in view of the admission regarding the value of the rents and profits, and was only the denial of a legal [98]conclusion. The complaint does not allege that the defendant had been in possession for any length of time prior to the commencement of the action, but the court was authorized to include in its judgment for damages the value of the rents and profits from the commencement of the action down to the time of rendering judgment. (Love v. Shartzer, 31 Cal. 487.)

The order is affirmed.

Garoutte, J., and Van Fleet, J., concurred.

Hearing in Bank, denied.

F. A. Hihn Co. v. Fleckner

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