Knowles v. Murphy
Before: Harrison
Synopsis
Unlawful Detainer—Parties—Action by Executors op Deceased Lessor.—The executors of a deceased lessor may bring an action of unlawful detainer against Ms lessees, who hold over after written demand for the payment of rent or for the delivery of possession of the demised premises.
Id.—Estates of Deceased Persons—Executors Successors to Estate of Landlord—Notice to Tenant.—While engaged in the administration of the estate of a deceased person, the executors are to be regarded as the successors in estate of the landlord, for the purpose of giving the notice authorized by section 1161 of the Code of Civil Procedure, and enforcing against the tenant who is guilty of an unlawful detainer the remedies authorized by that code.
Id.—Pleading—Surplusage.—Where the complaint in an action of unlawful detainer sufficiently states a cause of action, and sets forth the terms of the lease and the period during which the defendant had been in default in the payment of the rent prior to the date of the demand, and showing that the rent was payable in advance, the averment that the amount in default covered a period which extended beyond the date at which the demand was made, or beyond the date when the last installment accrued, is merely surplusage.
Id.—Manner of Service of Notice—General Demurrer—Construction of Pleading.—It is not necessary in a complaint for unlawful detainer to allege the manner in which the notice to pay the rent or to surrender possession was served, and, if the fact of the service is distinctly alleged, this allegation will he construed, as against a general demurrer, to include every thing necessary to constitute a sufficient service.
Id.—Nonsuit—Sufficiency of Proof.—A nonsuit is properly denied, where the proof shows the execution of the lease and the default in the payment of the rent provided therein, and there is an admission in the answer that the defendants held possession of the demised premises.
Id.—Pleading—Admission of Possession—Construction of Denial.— A denial of the defendants in their answer that they still continue to hold or occupy the premises, or any part thereof, as tenants, is an admission that they are in possession, and merely denies the tenancy.
Id.—Title not Involved—Deed Intended as Mortgage—Estoppel of Tenant.—In an action of unlawful detainer against a lessee, the question of title is not involved; and the lessees cannot avoid the obligation assumed by reason of the lease, by showing that the lessors did not have the title to the premises demised to them.
Id.—Effect of Possession at Time of Lease—Estoppel—Question of Fraud.—The rule that a person in possession of premises at the time of entering into a lease is not estopped from disputing the title of the lessor does not apply in an action of unlawful detainer, except that the tenant may show that he was induced to accept the lease by any fraud of the lessor which, if shown, would destroy the relation of landlord and tenant, and remove the estoppel.
Harrison, J. Defendants entered into a lease with C. P. Lolor, bearing date August 3, 1885, by the terms of which he hired and demised to them a certain lot of land in San Francisco, for the term of six months, at the monthly rent of thirty-one dollars, payable in advance on the third day of each and every month during said term. The instrument contained a clause giving to the defendants the option of purchasing the demised premises at any time during the term, by paying the sum of three thousand seven hundred dollars and all the rent accruing under the lease. The defendants had been in possession of the land, claiming to be owners thereof, for several years prior to this time, and had mortgaged it to Lolor to secure an indebtedness to him of three thousand dollars. Lolor had commenced an action to foreclose the mortgage, and while that action was pending the defendants executed to Lolor a conveyance of the lands, and at the same time took from him the aforesaid lease. After its execution they paid all the rent which accrued, according to the terms of the lease, prior to April 3, 1891. Lolor died in December, 1890, and, in March, 1891, the plaintiffs were appointed his executors. The defendants not having paid any rent after their appointment, the plaintiffs, on the 12th of February, 1892, served upon each of them a written demand for the payment of the rent, stating the amount then due, or that they deliver possession of the demised premises This demand not being complied with, the present action was brought. Judgment was rendered in favor of the plaintiffs, and the defendants have appealed therefrom and also from an order denying a new trial:
1. The plaintiffs were authorized to bring this action. “Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates.” (Code [112]Civ. Proc., sec. 1582.) In Martel v. Meehan, 63 Cal. 47, it was held that the provisions of this section do not apply to an action brought, under the provisions of section 1161 of the Code of Civil Procedure, against an executor of one who in his lifetime had been a tenant of the plaintiff, for the reason that the section authorizes such action only when the tenant continues in possession, “ in person or by subtenant,” and that the executor is not such “ person” or a subtenant; and that a judgment against an estate in the nature of a penalty of three times the amount of the rent should not be given unless expressly authorized by statute. These reasons do not exist in the case of an action by executors. The section expressly authorizes them to bring actions for the recovery of any property, in all cases in which the same might have been brought by their testator; and while they are engaged in the administration of the estate the executors are to be regarded as the “ successor in estate of the landlord,” for the purpose of giving the notice authorized by section 1161, and enforcing against a tenant who is guilty of an unlawful detainer the remedies authorized by that chapter.
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