Logan v. Byers

Smith, P. J.

Action of unlawful detainer. The case shortly stated is this:

One Jacobs rented a certain lot to the defendants at a monthly rental of $5. While defendants were in the occupancy of the lot as the tenants of Jacobs, the latter sold and conveyed said lot to the plaintiff. The defendants neglected to pay the plaintiff any rent. The plaintiff gave thirty days notice in writing to defendants to quit. The judgment was for plaintiff and defendants appealed.

The defendants insist that the trial court erred in overruling the demurrer interposed by' them to the plaintiff’s evidence. The complaint is based on sections 6891 and 6392, Revised Statutes. But the evidence does not show that the defendants leased the premises of the plaintiff. There were no contractual relations *561 between them. They were in no sense privies. The section of the statute on which the action was brought has no application to a case like this. There are other sections of the same statute that are perhaps .more applicable.

Section 6397 provides that a purchase of real estate which is occupied by a tenant at the time of the purchase may avail himself of its provisions to recover possession where the tenant refuses to pay rent to such purchaser. Section 6390 further provides what the complaint shall in such case set forth and what the complainant must show in order to recover. Another section, 6398, provides that, before such proceedings shall be commenced the plaintiff shall make a demand of rent and at the time of making the demand exhibit to the tenant or person in possession the deed under which he claims. This proceeding was brought in total disregard of the sections of the statute just referred to. Plaintiff was not entitled to recover under her complaint because, as already stated, she did not show that the relation of landlord and tenant existed between herself and defendants, nor could she under the sections which authorized her to sue as purchaser, for the reason that her complaint does not conform in its statements to the requirement of section 6399, and if it did it does not appear from the evidence that there was any demand for the rent coupled with an exhibition of the deed under which she claimed title. It is clear that she was not entitled to recover under either of the said statutory provisions.

If it had been shown that plaintiff exhibited her deed to defendants at the time of demanding the rent she would have likely been entitled to recover under the provisions of said sections 6397, 6398, 6399, supra, if her complaint had been based on the latter of said *562 sections. It results therefore that the trial .court erred in its action denying the defendants’ demurrer to the evidence.

Iij this view of the case it becomes wholly unnecessary to review the action of the court in admitting certain evidence over the defendants’ objections. The judgment will accordingly be reversed.

All concur.