Lasserot v. Gamble

BELCHER, C. This is an appeal from a judgment and order refusing a new trial. No brief has been filed on behalf of the respondent. The action is for the forcible detention of certain lands and premises in Santa Cruz county known as the “Gamble Place.” The complaint alleges that on the first day of December, 1893, the plaintiff was in the actual, peaceable and undisturbed possession of the said lands and premises, and that, while plaintiff was in such possession, and during his absence from said premises, the defendant, on the day named, unlawfully, and against plaintiff’s will, and without his consent, entered upon said premises, and ousted and ejected plaintiff therefrom, and ever since unlawfully, wrongfully, forcibly and against plaintiff’s will has held, and still holds, possession of the same; that on the thirtieth day of January, 1894, and before the commencement of this action, plaintiff made demand of defendant that he forthwith surrender the said premises and the. possession thereof to plaintiff, but defendant, for more than five days áfter said demand, refused, and still refuses, to surrender the same. The complaint also states that on December 1, 1893, plaintiff was in possession of certain personal property on the said premises, which was then and there and theretofore used by' him in the cultivation, farming and use thereof, and that defendant then and there wrongfully and unlawfully seized and took possession of all of said personal property, and converted the same to his own use, to the plaintiff’s damage, etc. The answer denies that on the first day of December, 1893, plaintiff was in the peaceable or undisturbed possession of the said real property or of the said personal property, with certain specified exceptions, and alleges that all of said real property and all of said personal property, omitting the excepted articles, was the property of defendant on said day, and that he was then entitled to the possession thereof. The answer further al[512]leges that defendant took possession of all of said property, excepting the said enumerated articles, rightfully and in accordance with the consent and agreement of plaintiff theretofore expressed and entered into by him, and denies that plaintiff has been damaged in any sum whatever by being deprived of said real or personal property. The answer then sets out a lease of the said premises alleged to have been executed by defendant to plaintiff on the twenty-eighth day of June, 1893, for the term of three years and four months, commencing on the first day of July, 1893, and ending on the first day of November, 1896. The lease provides that: “The party of the second part is to stock said ranch with the seven cows and six calves now on said ranch, and the party of the first part is to furnish an equal number of cows, or others of equal value, on or before the first day of December next. Each of the parties are to furnish half of the necessary seed and feed and half of the hogs necessary to consume the grain or other products of said ranch, and each is to pay half the cost of repairing the agricultural implements used on said ranch. The party of the first part is to furnish materials for making and keeping the necessary fences in repair. The party of the second part agrees to furnish labor and work said ranch and. dairy well, and to make and keep the necessary fences in good repair during the continuance of this lease; to market and dispose of such of the products of the dairy and ranch as both of the parties may from time to time agree to; to keep a full and correct account of such sales, yielding to the party of the first part a correct copy thereof, and paying him one-half of the proceeds thereof on the first day of each and every month during the continuance of this lease; and as compensation for the crop now on said ranch the party of the second part agrees to pay to the party of the first part, on or before the first day of November next, the sum of $400 out of the proceeds of the sales of the hogs or other products of said ranch, such amount being in excess of the half due said party of the first part.....And the said party of the second part covenants with the said party of the first part that if, at any time during the continuance of this lease, he should fail or refuse to comply with the covenants herein made by him, or in any part thereof, this lease shall at once become void, and the party of the first part may