If the application be refused, it may be renewed at the expiration of each succeeding ten days.5 If the application be granted, the applicant must take the oath prescribed by section 1148 of the Code of Civil Procedure. If the creditor of the person so imprisoned, or his agent or attorney, do not advance to the jailor sufficient money for the support of the person so imprisoned, as provided in section 1154 of the Code of Civil Procedure, the jailor must forthwith discharge such person from such imprisonment. When a controversy is submitted without action, an affidavit must be filed showing that the controversy is real, and that the proceedings are in good faith to determine the rights of the parties. The agreed case must contain the facts upon which the controversy depends. 5. Code of Civil Procedure, Sec. 1550. BUDD-20 CHAPTER XLIV. OF FORCIBLE ENTRY, AND FORCIBLE AND UNLAWFUL DETAINER. The violently taking or keeping possession of land and tenements with menaces, force and arms, and without the authority of law, was a public offense at common law. A peaceable entry on and the taking possession of land by a person entitled to such possession was permissible at common law, but such peaceable entry, if made, could not be maintained with force, with violence, and with unusual weapons until after the occupancy of the land under such entry has ripened into a peaceful possession by a peaceable enjoyment of the land for three years.1 When there has been a forcible entry on lands in the possession of another person, and when there had been a peaceable entry on lands in the possession of another person and the occupancy of the land under such entry is maintained with force, menaces and violence, the laws have provided a summary remedy for the restoration of the person deposed, to the possession of the land. The law has also provided a summary remedy for the restoration to a landlord from a tenant of the possession of lands leased to such tenant in case he unlawfully detains from his landlord the possession of the land so leased. In an action or proceeding for such restoration title to the land cannot be inquired into. In such action by a landlord against a tenant such tenant is estopped from denying the title of the landlord. The statutes of California (Code of Civil Procedure, sec 1. 4 Bl. Com. 148, 149. tions 1159-1179) have provided for such summary remedies in that state. These remedies provide for the assessment of damages caused by such forcible entry and detainer, and by a forcible or unlawful detainer, and if the unlawful detainer be by a tenant owing rent, they provide for a finding of the amount of rent due; and they provide in these cases for judgment for the plaintiff for the recovery of three times the amount of damages so assessed, or of the rent so found due. In case the landlord dies, the executor of his will, or the administrator of his estate, is the successor in the estate of the landlord for the purpose of giving the notice authorized by section 1161 of the Code of Civil Procedure, and for the enforcing against the tenant, who is guilty of an unlawful detainer, the remedies authorized by that code.3 The person alleged to be a tenant may allege and show in such action that he was induced to accept the lease by any fraud of the lessor, which, if shown, would destroy the relation of landlord and tenant and remove the estopel.4 In an action for a forcible entry and for a forcible detainer, a finding showing a forcible detainer will support a judgment in favor of the plaintiff in the action.5 One cotenant can maintain an action of unlawful detainer without joining the other cotenants.R The action of unlawful detainer cannot, in case of the death of the tenant, be maintained against the executor of his will, who succeeds to the possession of leased premises held by the deceased at the time of his death but makes default in the payment of rent. The action may be maintained against a tenant at will, after notice of thirty days, to terminate the tenancy, and a subsequent notice to quit.8 In order to maintain an action of forcible entry, the plain 2. Code of Civil Procedure, Sec. 1174. 3. Knowles v Murphy, 107 Cal. 107. 4. Knowles v. Murphy, 107 Cal. 107. 5. Adams v. Helbing, 107 Cal. 298. 6. Lee Chuck v. Quan Wo Chong Co., 91 Cal. 593. 7. Cartel v. Meehan, executor, 63 Cal. 47. 8. Hall v. Wallace, 88 Cal. 434. tiff must allege and show that he was in the actual and peaceful possession of the property entered upon, and that the defendant by some kind of violence or circumstances of terror entered into or upon the property, and so turned the plaintiff out and took and held possession himself, or that after making a peaceable entry, the defendant by force, threats or menacing conduct turned the plaintiff out and took the possession.9 The possession of the plaintiff must be actual and of sufficiently long standing to become, to a legal intent, peaceable, before an action for a forcible entry can be maintained by him. 10 A peaceable entry made on lands in bad faith is unlawful; and in a case in which it is material to determine whether such entry by a defendant was in good or bad faith, the defendant might, under the forcible entry and detainer act of 1865-6, produce evidence of title, for the sole purpose, however, of showing that his entry was in good faith, or produce evidence of his right as a pre-emptor to enter on such land.11 But it has been subsequently held by the Supreme Court that evidence of good faith, or of title, is not admissible in summary proceedings to obtain possession of real property, under the provisions of the Code of Civil Procedure, for the purpose of showing whether a peaceable entry was or was not unlawful, or made in good faith, and this is the rule in New York. 12 The general terms, "actions of forcible entry and detainer,” as employed in the constitution of California, include actions. for the unlawful holding over by tenants.13 If the owner of land lets the same for a share of the crops, as rent, the relation of landlord and tenant as to the land exists between the owner of the land and the person to whom it is so let. 14 The words "expiration of the term," employed in subdivis 9. Castro v. Tewksbury, 69 Cal. 562. 10. Hoag v. Pierce, 28 Cal. 187. 11. Shelby v. Houston, 38 Cal. 410; Townsend v. Little, 45 Cal. 673. 12. Bank of California v. Taafe, 76 Cal. 628; Voll v. Hollis, 60 Cal. 474, 475. 13. Brummagim v. Spencer, 29 Cal. 661. 14. Jones v. Durrer, 96 Cal. 95. ion I of section 1161 of the Code of Civil Procedure refers only to the expiration of the term specified in the lease by lapse of time, and does not refer to the expiration of such term by a forfeiture for non-payment of rent.15 In case of non-payment of rent due for three days after notice in writing requiring its payment (stating the amount which is due) or the possession of the property, the landlord can maintain the action.16 If the tenant assigns or sublets the leased premises, or commits waste thereon, contrary to the covenants of the lease, the lease is thereby terminated, and the landlord or his successor in estate, may, upon service of three days' notice to quit upon the person or persons in possession, maintain against such persons an action for an unlawful detainer.1 17 The action can be maintained by the landlord after a neglect or failure to perform convenants in the lease, other than for the payment of rent, and a failure to perform them for three days after notice in writing requiring performance of such covenants, or the delivery of the possession of the leased property.18 But if such conditions and covenants cannot be performed subsequent to the time at which they should have been performed, the action for unlawful detainer may be maintained without giving such notice.19 Whenever the right of entry is given to a grantor or lessor in a grant or lease, such entry may be made at any time after the right has accrued upon the three days' notice, as provided in sections 1161 and 1162 Code of Civil Procedure, and in the Civil Code, section 791; and a landlord cannot maintain an action for unlawful detainer until after such three days' notice has been given.20 An action for an unlawful detainer cannot be maintained in California against a tenant at will, until at least one month's 15. Silva v. Campbell, 84 Cal. 420. 16. Code of Civil Procedure, Sec. 1161. 17. Sub. 4 of Sec. 1161, Code of Civil Procedure; Bernero v. Allen, 68 Cal. 505. 18. Sub. 3 of Sec. 1161, Code of Civil Procedure; Opera House v. Burt, 52 Cal. 471. 19. Kelly v. Teague, 63 Cal. 68. 20. Smith v. Hill, 63 Cal. 51. |