AGLIE STOPPELKAMP v. CHARLES MANGEOT and AUGUSTINE CEZAR, 42 Cal. 316

By the Court, Sawyer, C. J.: This is an action against a tenant holding over, to recover the premises under the Forcible Entry and Detainer Act of 1863. The complaint alleges that plaintiff, on the 20th of June, 1867, “leased, demised, and let to said defendant” the premises in question, “to have and to hold the said premises to said defendant, Charles Mangeot, for the month thence ensuing, at the rent of twenty-five dollars, payable on the twentieth day of said month of June, in advance.

That by virtue of said lease, the said defendant, Charles Mangeot, went into the possession and occupation of the demised premises, and still continues to hold and occupy the same.” The complaint then alleges the giving of notice in time, under

section six of said Act, that if defendant should hold over after the expiration of the month, the rent would be five hundred dollars per month, in gold coin, a demand and refusal of the rent, and a demand of the possession. The case was tried by a referee; the facts found in favor of plaintiff' and judgment rendered for possession and treble rent, at five hundred dollars per month.

The first point is, that the complaint does not state facts sufficient to constitute a cause of action or to sustain the judgment, in this, that the tenancy alleged is a tenancy for a specific time, viz: one month, and not a tenancy from month to month, and is, therefore, not within the provisions of the sixth section, authorizing a change of the term of the lien by giving notice in the mode therein prescribed. The provisions of the sixth

section are as follows: “In all leases of lands or tenements, or any interest therein, from month to month, the landlord may, and it shall be lawful for him, upon giving notice in" writing at least fifteen days before the expiration of the month, to change the terms of the lease, to take effect at the expiration of said month.

Said notice, when served upon the tenant, shall of itself operate and be effectual to create and establish, as a part of the lien, the terms, rent, and conditions specified in said notice, if such tenant shall continue to hold such premises after the expiration of said month.” Without this provision of the statute, of course, the landlord could not change the terms of the lease in the mode prescribed.

This mode of changing the terms of the lease, and creating a new contract against the will of the tenant, then depends wholly upon the statute, and the cases in which such changes can be made must be limited to those in which it is expressly authorized. We cannot extend the stringent provisions of the Act to other cases not provided for. Unless a lease for a specific period of time, as one month, is the same identical thing in law as a lease for an indefinite period of time with rent payable monthly, or a lease from month to month, the provisions of

section six do not apply to the former. And they are clearly not identical in law. They are different estates, with different incidents, and are designated in law by different technical terms. There is a substantial, not merely a verbal difference. On a lease for a specific time, as one month, the estate terminates by the mere lapse of time, and at the end of the term the lessee must go out. Eo notice is necessary to terminate the tenancy and entitle the landlord to reenter, or to enable the landlord to recover in case the tenant refuses to surrender the premises.

But in the case of a lease from month to month, the estate does not terminate by the mere lapse of time. Neither party can terminate the relation without giving notice in advance for the time required by law. If a tenant for years holds over with the consent of his landlord, express or implied, paying yearly rent, without any further arrangement as to time, the tenancy may thus be converted into a tenancy from year to year.

A tenancy from year to year may be a tenancy for years; that is to say, a tenancy for one year certain, with a right to hold over from year to year thereafter, unless due notice be given; but a tenancy for years,, technically so called, is not a tenancy from year to year, and a tenancy from year to year only aims thereon to a further agreement, or by holding over after the term has expired by the consent of the landlord, express or implied. In this .case, the tenancy alleged in the complaint is a tenancy for a specified period of time, to wit: one month.

It is technically a tenancy for years and not a tenancy from year to year, or from month to month. And the statute only authorizes a change of the terms of the lease in the mode pursued in the case of a tenancy from month to month. It was not authorized, therefore, in the case alleged in this complaint. The last clause of the

section does not aid the plaintiff. It is as follows: “In all leases of lands or -tenements, or any interest therein, for a month, or any term less than one year, and the tenant holds over his term by consent of his landlord, the tenancy shall be construed to be a tenancy from month to month, or a tenancy for such term less than a year as the case may be.” This clause only enacts in express terms the common law.

It simply provides that if the defendant had held over after the expiration of the month for which the premises were demised, with the consent of the landlord, he would from so holding over, therefore, become a tenant from month to month. But in that event the terms of the lease could only be changed by giving the notice in the mode prescribed by the sixth section, for the time commencing after the expiration of the first month of the tenancy from month to month.

The notice in this case was given before the holding over commenced, and, therefore, before there was any tenancy from month to month, and it was premature. Besides, the defendant did not hold over with the consent of the landlord.

On the contrary, by giving the notice of change of terms before a tenancy from month to month commenced, and following it up by demand of rent, and immediately thereafter of possession, he repudiated the holding over on the original terms, and the claims of the respective parties were adverse, and actually hostile from the very moment of the expiration of the specific terms alleged, and there never was a tenancy from month to month upon the state of the facts alleged in the complaint.

Upon the facts alleged in the complaint, the plaintiff is not entitled to recover five hundred dollars per month rent after the expiration of the term stated. But the complaint states facts sufficient to justify a recovery of the possession of the premises, and consequently, states a good cause of action for some relief, although insufficient to justify all the relief asked and obtained. The evidence upon the question as to whether defendant was in fact a tenant at all of the plaintiff, is very much in conflict, and we think the finding justified.

At all events, the case clearly falls within the rule which prohibits us from disturbing the finding of the referee on that issue. The provision of the statute conferring jurisdiction upon County Courts in actions to recover the possession of premises held over by tenants against the consent of the landlord, are constitutional, for reasons given in Caulfield v. Stevens, 28 Cal. 118; see, also, Courtright v. Bear River Company, 30 Cal. 573. Under the views expressed it is unnecessary now to decide the point, whether the provisions of the sixth

section of the Forcible Entry and Detainer Act of 1863, providing for changing the terms of the lease by serving notice of such intention on the part of the landlord in the mode therein prescribed, are constitutional or not. For the purpose of this decision we assume them to be constitutional. The judgment, as we have seen, gives relief to which the plaintiff is not entitled upon the facts alleged in the complaint, and the judgment must be reversed, unless the plaintiff will consent to a modification.

Judgment and order denying a new trial reversed, unless the plaintiff and respondent shall»within fifteen days, file in this Court a stipulation, in writing, consenting that the judgment may be modified so as to reduce the judgment for damages to seventy-five dollars; but, upon filing stipulation as herein provided, the .judgment will be modified in accordance therewith. [The foregoing opinion was delivered at the April Term, 1869, at which time Mr. Chief Justice Sawyer and Mr. Justice Sanderson were members of the Court.

A rehearing was granted, and the following opinion was delivered at the October Term, 1871:] By the Court, Wallace, J.: Ordered, that the judgment heretofore rendered in this case, directing a modification of the judgment of the Court below, be and the same is hereby set aside; and it is further ordered that the judgment of the Court below be and the same is hereby reversed, and the cause remanded for a new trial; the opinion heretofore filed herein to stand as the opinion of the Court, except so much thereof as authorizes a modification of said judgment.