Kuhn v. Smith

GAROUTTE, J. This is an action of ejectment. Plaintiffs, by writing, leased certain agricultural lands to defendant for a fixed, definite period—about ten months. Upon the expiration of the lease defendant refused to give up' possession, and this action was commenced. Plaintiffs commenced the action some six weeks after the lease had expired, and defendant now rests his right of possession upon the claim that after the expiration of the lease he became a tenant at will, and by virtue of such tenancy he was entitled to a notice of thirty days (Code Civ. Proc., sec. 1162) before action could be brought to eject him. In other words, his only defense is that the action is prematurely brought. There is nothing whatever.in the claim made. The defendant was not a tenant at will. Under his lease he was a tenant for years, and upon the expiration of his term it was his duty to move without notice. He had no rights of any kind which demanded a notice in writing in order that they might be cut off.

It is not the law of this state that a tenant who remains in possession, perchance a single day after the expiration of his lease, thereby becomes a tenant at will and must be served with a thirty-day notice before he may be ejected. Upon a similar state of facts it is said in McKissick v. Ashby, 98 Cal. 425: “Under the facts stated, we think that plaintiff had a right to reenter when the term expired and to maintain an action for possession without previous notice or demand.” It is also said in Canning v. Fibush, 77 Cal. 196: “And inasmuch as the lease expired by its own limitation there was no necessity of a notice to terminate it.....This being the case, we do not see how the defendants had any right to continue in possession, and, if they had no such right, why the plaintiff should not recover the premises, with damages for the detention.” In Perine v. Teague, 66 Cal. 446, the syllabus is as follows: “A tenant who enters and continues in possession of the demised premises under a written lease until the expiration of the term, does not thereafter become a tenant at will by refusing to surrender that possession and by holding over without the consent of the lessor.”

Eor the foregoing reasons the judgment is affirmed.

Van Dyke, J., and Harrison, J., concurred.