Lord v. Thomas

HAYNES, C. Action in ejectment to recover possession of two acres of land in Stanislaus county. The complaint is in the usual form. The answer, after denying the allegations of the complaint, for a second defense alleged that defendants were tenants in common, with the plaintiff, and were entitled to possession as such, and that they did and always had permitted plaintiff to have possession as such cotenant. Por a third defense, they alleged that in April, 1885, Joseph Lord, the father of the plaintiff, agreed with defendant Stephen Thomas to purchase the demanded premises (which were then about to be sold at administrator’s sale), for himself and Thomas, each to have an undivided one-half interest therein; that Joseph Lord bought the premises pursuant to said agreement, that Thomas paid a part of his proportion of the purchase money, and Lord advanced the remainder, and took a conveyance thereof in his own name for the benefit of himself and Thomas, and thereafter held the title in trust for the benefit of both; that defendant went into possession as such cotenant in his own right, and had ever since occupied the premises as such cotenant; and that plaintiff took a 'conveyance of the whole of the premises from his father, Joseph Lord, with full knowledge of said facts and of the rights of defendants therein. Special issues were submitted to the jury covering the controlling facts alleged in the third defense, all of which were found in favor of de[771]fendants, and those were adopted by the court, and full findings on all the issues were added, and defendants had judgment. The plaintiff’s motion for a new trial was denied, and this appeal is from the judgment and the order denying a new trial.

The principal question arises upon the exclusion of certain evidence offered by the plaintiff. On January 25, 1890, the plaintiff, William J. Lord, commenced an action in the superior court against Stephen Thomas, one of the defendants herein, upon two causes of action: one for the recovery of rent for the same premises involved in this action from April 28, 1888, to January 20, 1890, at $9 per month, amounting to $183, and in the second cause of action, which was for unlawful detainer, sought to recover possession of the same premises, alleging a written lease made January 20, 1890, for three months at $10 per month, and that notice to quit was served April 22, 1890. The answer of defendants in that case, in addition to denials, alleged substantially the same facts set up in the third defense in this action, and, as to the written lease alleged in the complaint, answered that it was intended as an acknowledgment of plaintiff’s interest in the premises as tenant in common, and an agreement to pay rent for such interest, and that under said lease he paid the rent up to May 20, 1890. That action was tried by the court without a jury, and resulted in a judgment for plaintiff for $183 upon the first cause of action, and against the plaintiff on the second, upon the ground that the lease had been extended by receiving rent beyond the term, and for want of the proper notice. The findings were very full, and to the effect that the defendant never had any ownership as tenant in common or otherwise, that he had always occupied the premises as the tenant of the plaintiff and his grantor, at a monthly rental of $9 up to the date of the written lease, and that said lease was of the entire property, and not of an undivided interest.