Diggs v. Porteus

SEARLS, C. Action to recover possession of a house and lot situate in Woodland, Yolo county, and damages for the detention, rents, etc. Plaintiff had judgment, from which defendant appeals. The cause comes up on the judgment-roll.

The complaint avers, in substance, among other things, that on or about May 1, 1880, one Jacob Hays, being the owner of the locus in quo, did lease and let the same to the defendant from month to month, during the will of the lessor, at a monthly rent of $30, to be paid by defendant to the lessor, upon an agreement that defendant should vacate and surrender the premises to his lessor at any time when required so to do; that defendant entered under the lease, and is still in possession; that in January, 1891, plaintiff purchased the premises; that he is still the owner thereof; that his conveyance was duly recorded, etc.; that defendant had notice of plaintiff’s purchase, and paid rent to him up to April 1, 1891, since which time no rent has been paid; that on February 20, 1891, plaintiff served defendant with written notice to vacate said premises and surrender possession to plaintiff on or before April 1, 1891, and that defendant’s tenancy would terminate at said last-mentioned date, and that, if defendant failed to surrender at said time, plaintiff would claim and demand of defendant $200 per month thereafter, and damages for detention, etc.; that, after the tenancy ceased, plaintiff demanded of defendant, in writing, a surrender of the premises, which was not complied with in three days, and has never been complied with, although more than three days elapsed before suit brought. Then follows certain allegations as a basis for special damages, not necessary to be mentioned here. Defendant filed an answer and cross-complaint, in which he denies his tenancy under the plaintiff, except under and by virtue of a lease, etc., and by his cross-complaint (in which it is asserted that Jacob Hays and Thomas Kelly have been •made parties by order of the court) he avers that on June 1, 1888, Jacob Hays leased the disputed premises to Thomas Kelly, under a written lease, for a term of five years, at a monthly rental of $35 per month, payable monthly on the eleventh day of each month, in advance, with a privilege of renewal for a further term of five years on like terms. That [755]Hays and Kelly subsequently agreed that said lease should be delivered to Porteus by Kelly, and that Porteus should become responsible to Hays for the rent to the extent of $30 per month, and that he, Porteus, should be the owner and holder of the lease. That plaintiff, at the date of his purchase, had notice, and thereafter received the rent at $30 per month. That defendant made improvements, etc. That Kelly never delivered the lease to him as per agreement, and that thereafter Hays agreed to lease to him, and a lease was prepared, but never signed; and asks that Diggs and Kelly be decreed to assign the lease to him, and that Hays and plaintiff be decreed to execute the second lease, etc. The cause was tried by a jury, and, in obedience to instructions of the court, certain questions touching the issues were answered in favor of the plaintiff, and against defendant’s theory that he entered under a lease, etc. The jury further found that plaintiff was entitled to possession of the premises, and to $30 per month as rent. The court adopted the findings of the jury; made additional findings, all in favor of plaintiff; that all the allegations of the complaint were true, except as to damages, which are fixed at $30 per month, being the same amount agreed to be paid as rent; and judgment of restitution was entered, with $315, being three times the rent found due.