H. M. MOORE v. W. R. MORROW, 28 Cal. 551

By the Court, Shafter, J. This is an action to recover the possession of real estate. The complaint states a case within the Act relating to forcible entry, etc., but by the consent of parties the action was turned into an action of ejectment in the Court below. The appeal is taken from an order overruling defendant’s motion for- a new trial.

First—It is insisted by the appellant that the judgment should be reversed, for the reason that there was no evidence tending to prove that the plaintiff made a written demand upon the defendant to surrender the possession of the premises thirty days before the commencement of the action. The defendant held under a lease from the plaintiff for one year. The term ended July 28th, 1864, and a demand in writing for a surrender of the premises was duly served by the plaintiff on the defendant the next day. The service was on the premises—the plaintiff having entered thereon for that purpose.

The action was commenced on the 3d of August following. When a tenant held over after the expiration of his lease, he was regarded at common law as a tenant at sufferance; but the estate might be destroyed by an entry on the part of the landlord, and he might thereupon proceed in ejectment. (Uridias v. Morrill, 25 Cal. 34.) The Act of 1861 (Statutes of 1861, p. 514) relates to tenancies at will and by sufferance, and the first

section provides that “the same maybe terminated by the landlord’s giving one month’s notice in writing to the tenant, requiring him to remove from the premises.” It is further provided by the third

section that “ at the expiration of one month from the service of such notice, the landlord may re-enter, or maintain ejectment, or proceed in the manner prescribed by law to remove such tenant, without any other or further notice to quitand

section five gives the landlord a right to double damages in the action. A tenancy by sufferance is not by the consent, but by the loches of the owner (2 Black Com. 150), and it follows that where the owner has been guilty of no loches there can be.no tenancy by sufferance to which the provision of the statute as to notice can apply. In this case the defendant never became tenant by sufferance, for the indispensable condition of loches on the part of the plaintiff is not only not found, but is shown affirmatively never to have existed.

In view of the principle that the law rejects fractions of days, we consider the record as showing that the plaintiff entered upon the premises on the instant the defendant’s term expired, and for the avowed purpose of asserting his rights as owner. Instead of loches then, we have a singular exhibition of diligence in the conduct of tho plaintiff which forestalled the possibility of a tenancy by sufferance arising in the defendant’s favor. It was held in Rowan v.

Little, 11 Wend. 616, under a statute of New York from which our Act. of 1861 appears to have been copied (see note in Adams on Ejectment, 145,) that there could be no tenancy by sufferance where there were no loches by the landlord, and that the burden of proving some degree>of negligence at least, on his part, was on the party asserting the tenancy.

In that case the landlord delayed proceedings for three months after the expiration of the lease; but it was held that, under the circumstances of the case, the delay did not amount to loches, and therefore that the tenant was not entitled to notice to quit as a prerequisite to an action of ejectment against him. In the case at bar, the question is not upon the sufficiency of delay for any given period, for there was no delay.

The plaintiff entered not for the purpose of recovering from the consequences of neglect, but with a view to prevent the consequences by practising diligence, instead of its opposite, from the start. The plaintiff filed his petition in insolvency prior to the bringing of this action, and the Sheriff was appointed assignee before the trial.

The appropriate evidence of these facts was offered at the trial, but inasmuch as it appeared by the record that the plaintiff had a perfected title to the premises as a homestead when he filed his petition, which title was recognized and established by the decree in pursuance of the prayer of the applicant, the evidence was rejected by the Court; and we consider that there was no error in the ruling. ¡ Judgment affirmed.