P. A. MORSE, D. J. TALLANT et al., Commissioners of the Funded Debt of the City of San Francisco, v. M. R. ROBERTS and J. R. WEST, 2 Cal. 515

Heydeneeldt, Justice, delivered the opinion of the Court, with which Andebson, Justice, concurred. The District Court sustained a demurrer to the declaration on two grounds: First. That there is no averment that the Commissioners of the Sinking Fund had authority to lease the property. Second. That there is no averment that the lease is assigned to the plaintiffs. In both of these reasons the Court has erred. In regard to the first, it is enough to say, that the defendants admitted the authority of the plaintiffs when they took this lease.

They went in by virtue of it, hold by virtue of it, and rest upon it to maintain and justify their possession. Like any other case of tenancy, they are obliged to acknowledge the paramount ownership of the lessors during the continuance of the lease; and no averment of the lessor’s right to lease is necessary as against them. In regard to the second ground of demurrer, the averment in the declaration is sufficiently clear and distinct. The judgment is reversed with costs, and case remanded.