Baxley v. Western Loan & Building Co.

Plaintiff’s complaint herein was entitled “Complaint in Forcible Entry and Detainer”. The cause was tried by the court sitting without a jury and from a judgment in favor of defendant, plaintiff appeals.

In 1930 the defendant corporation as vendor entered into a contract of sale with one Blaine as vendee covering the apartment house in question. It was an installment contract providing for monthly payments, giving the vendee the right of possession “until a breach or a default by the vendee” and giving the vendor the right upon any breach or default to “reenter upon the premises and resume possession thereof”. The last regular monthly payment upon the contract was made in August, 1931. Following the default, various amounts were paid to defendant from time to time, but no payment was made after July 26, 1932. At that time the vendee was in arrears on several payments. Blaine had assigned the contract to one Puissegur who in turn assigned it to plaintiff on August 24, 1932. Plaintiff tools: possession following the assignment of the contract to him, but, as above stated, no further payments were made. Plaintiff never resided upon the premises but engaged a Mrs. Roberts to act as manager. On September 13, 1932, one of the employees of defendant talked with Mrs. Roberts, told her that the defendant corporation was the owner of

In drawing the complaint plaintiff intermingled in a single cause of action allegations in the words of both sections 1159 and 1160 of the Code of Civil Procedure. The first-mentioned section defines forcible entry, while the second defines forcible detainer. In proceeding with his proof, plaintiff showed that he went into possession under the “contract of sale by the Western Loan and Building Company to sell to the assignor of Alexander Puissegur” and that he went out of possession of the premises in the manner above described.

Taking the position that neither title nor right to possession of real property are ever issues in actions where either forcible entry or forcible detainer are charged, appellant contends that the trial court erred in admitting evidence of the contract of sale and the defaults thereunder, and further contends that the evidence was insufficient to sustain the findings and judgment as “both forcible entry and forcible detainer were proven”. With these contentions we cannot agree. While appellant’s argument finds support in the broad language emploj^ed in some of the decisions, we believe that the authorities fully sustain the proposition that the right of possession may be shown in certain cases where forcible detainer is charged, of which this is one.

The more serious question is whether there was a forcible detainer. Section 1160 of the Code of Civil Procedure provides: “Every person is guilty of a forcible detainer who either—1. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or, 2. Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property and who, after demand made for the surrender

In contending that there was a forcible detainer in the instant case, appellant calls our attention to certain decisions in which it is indicated that “all entries on the actual possession of another are unlawful” and that the questions of title and right of possession can never arise in actions charging forcible entry or forcible detainer. (Kerr v. O’Keefe, 138 Cal. 415 [ 71 Pac. 447 ]; Voll v. Hollis, 60 Cal. 569 ; McCauley v. Weller, 12 Cal. 500 .) This is undoubtedly true in actions charging forcible entry under section 1159 for “the peace and good order of society demand that an actual and peaceable occupation of real estate, however it may have been originally acquired, shall not be disturbed by violence”. (12 Cal. Jur., p. 597.) It is likewise generally true in actions charging forcible detainer under section 1160, for in such summary proceedings the law will not ordinarily permit the litigation of title and right to possession by the adverse claimants and therefore the entry, although peaceable, is treated as “unlawful”. There is an exception, however, to the general rule in actions charging forcible detainer. When contractual relations exist between the parties whereby the right to possession has been given to the one taking possession by means of the peaceable entry, then neither the entry nor detention of the property is “unlawful” within the meaning of said section 1160 dealing with forcible detainer.

It may be freely conceded that neither the decisions nor the language employed therein are entirely harmonious, but the exception to the general rule is clearly indicated in Dutcher v. Sanders, 20 Cal. App. 549 [ 129 Pac. 809 , 810], a case which is cited and relied upon by appellant. The parties there were adverse claimants in a contest before the United States Land Office involving land in the possession of plaintiff. The contest was decided against plaintiff and defendant took possession of the land in the absence of

In the instant case there were contractual relations between appellant and respondent involving the right to possession of the premises. Under these circumstances the reason for the rule, which ordinarily prohibits the litigation of title and right to possession between adverse claimants in these summary proceedings, no longer exists. Appellant, as assignee of the vendee under the contract, could not question the title of respondent. (Gervaise v. Brookins, 156 Cal. 103 , 107 [ 103 Pac. 329 ].) Upon default in the payments, respondent was entitled to possession under the contract between the parties and could take possession if it could be done peaceably. (Francis v. West Virginia Oil Co., 174 Cal. 168 , 170 [ 162 Pac. 394 ]; 25 Cal. Jur., p. 696, at 697.) We are of the opinion that when respondent, acting under its right conferred upon it by the contract between the parties, obtained possession of the premises by means of a peaceable entry, neither the entry upon nor the detention of the premises was "unlawful” within the meaning of the subdivisions of said section 1160 relating to forcible detainer.

The judgment is affirmed.

Nourse, P. J., and Sturtevant, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on December 23, 1933, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 22, 1934.