Statement of Facts.

A. ST. CLAIR DENVER v. C. H. BURTON, JOHN E. P. SPILLMAN, JEFFERSON WILCOXSON, JACKSON WILCOXSON, REDDINGTON & WILLIAMS, JOHN BURTON, AND ED. MCCARTY.

AVERMENT OF FACT IN PLEADING.-It is not sufficient to state a material fact in a complaint by way of recital; it should be directly averred.

SAME.

A judgment creditor, made such by confession of judgment, who seeks to reach money of the judgment debtor in the hands of junior judgmen creditors, upon the ground that he has a prior lien on the same, must aver In his complaint that at the time his judgment was rendered, the amount for which it was rendered was unpaid and due.

APPEAL from the District Court, Sixth Judicial District, Sacramento County.

The complaint averred that John Burton and Ed. McCarty, who were engaged in the mercantile business in Sacramento, on the 2d day of October, 1861, confessed two judgments, one in favor of C. H. Burton, a brother of John Burton, for twentyfour thousand dollars, and the other in favor of E. P. Spillman, for about ten thousand dollars, and that executions were issued on the judgment and immediately levied on the goods of Burton & McCarty, and that later in the same day, Burton & McCarty confessed a judgment in favor of plaintiff for the sum of one thousand eight hundred dollars, and that an execution was issued and levied on the same goods, and that Jefferson Wilcoxson and Jackson Wilcoxson, later in the same day, levied on the same goods, and also obtained judgment against Burton & McCarty, and that the judgments in favor of C. H. Burton and E. P. Spillman were fraudulent. That the goods levied on had been sold by the Sheriff for six thousand dollars, by consent of parties litigant in the case of Wilcoxson v. Burton, 27 Cal. 228, and the money deposited in Court and paid over to the County Treasurer, and that the Wilcoxsons had obtained the money. That plaintiff had a lien on the money prior to the Wilcoxsons. Plaintiff prayed that the Wilcoxsons might be adjudged to hold the money in trust for

Opinion of the Court.

him, or sufficient thereof to satisfy his judgment, and for judg ment against them for that amount.

The averments as to the confession and entry of plaintiff's judgment, were in the following language:

"Plaintiff further shows that the said defendants, Burton & McCarty, on the 2d day of October aforesaid, in the District Court of the Sixth Judicial District, Sacramento County, upon request of plaintiff, confessed judgment in favor of plaintiff for the amount then due on said due bill, to wit: one thousand eight hundred dollars; and that judgment was thereupon regularly entered in said Court on said day for said amount, in favor of plaintiffs, and against said Burton & McCarty."

Defendants Wilcoxson demurred to the complaint. Judg ment was rendered in favor of the defendants, and plaintiff appealed.

Coffroth & Spaulding, for Appellant.

H. H. Hartley, for Respondents.

By the Court, SAWYER, J.

There is no direct allegation in the complaint that, at the time judgment by confession was entered against Burton & McCarty in favor of the plaintiff, the money for which judg ment was confessed was unpaid or then due. It was assumed, but not averred, that the money was due, and on that assumption the amount stated. This mode of statement is insufficient. (Halleck v. Mixer, 16 Cal. 577.) In an action to secure a priority of lien over Wilcoxson, who subsequently obtained the proceeds of sale of defendants' property under his own judgment, such an allegation is, in our opinion, material. For this defect the complaint does not state facts sufficient to constitute a cause of action, and the demurrer was properly sustained.

Judgment affirmed.

Statement of Facts.

SHAFTER, J., concurring specially.

I concur. Admitting for the purposes of argument that there is a sufficient averment that the eighteen hundred dollars "was due on the 2d of October, 1861," still it is not alleged that it remained due at the point of time when, on the same lay, the confession was filed. The law does not generally take notice of the fractions of a day, but in a case like the present it should appear by some form of direct statement that at the very instant when the judgment was confessed the relation of creditor and debtor was on foot and to the extent stated in the judgment.

H. M. MOORE v. W. R. MORROW.

TENANCY BY SUFFERANCE - A tenancy by sufferance not by the consent but by the laches of the owner, and where the owner has been guilty of no laches there can be no tenancy by sufferance.

WHEN A TENANT FOR A TERM BECOMES TENANT BY SUFFERANCE.-- A tenant under a lease for a term does not become a tenant by sufferance upon the expiration of his lease, and is only made such by the laches of the landlord in not re-entering, or in not giving him notice to quit

WHEN LANDLORD MAY BRING EJECTMENT. If the landlord give notice to quit immediately upon the expiration of the tenant's term, and the tenant hold over, the landlord may maintain ejectment without waiting one month after the notice.

BJECTMENT BEFORE TENANT BECOMES SUCH BY SUFFERANCE. The landlord is not required to wait one month after notice to the tenant to quit before bringing ejectment to remove the tenant, unless by the laches of the landlord the relation of tenancy by sufferance has been established.

AN INSOLVENT MAY SUE TO RECOVER HOMESTEAD. The husband may main. tain ejectment to recover possession of the homestead during the pendency of an application on his part to be discharged from his debts under the insolvent laws.

APPEAL from the District Court, Fourteenth Judicial District, Nevada County.

The defendant set up in his answer that prior to the commencement of the action the plaintiff had filed his petition in insolvency and asked to be discharged from his debts.

During the pendency of this suit plaintiff had obtained his discharge in insolvency, and the Sheriff had been appointed assignee. On the trial defendant offered in evidence the judg

Argument for Respondent.

ment roll in the insolvent case, but on objection of plaintiff's counsel, it was rejected. Plaintiff had judgment and defendant appealed.

The other facts are stated in the opinion of the Court.

J. J. Caldwell, for Appellant.

Blackstone defines an estate at sufferance to be "when one comes into possession of lands by lawful title, but keeps it afterwards without any title at all." "As if a man takes a lease for a year, and after a year expires continues to hold the premises without any fresh leave from the owner of the estate." (See 2 Blackstone's Com. 150.) The statutes of California provide that in such cases the defendant must have thimy days' notice. (See the Statutes of Cal. 1861, p. 514- An Act relating to the duties and rights of landlords and tenants, May 18th, 1861.) Section first of said Act provides, that "whenever there is a tenancy at will or by sufferance, created by the tenant's holding over his term or otherwise, the same may be terminated by the landlord's giving one month's notice in writing to the tenant, requiring him to remove from the premises."

This we believe is the only law in this State now in force or at the date of the suit brought regulating the rights and duties of landlord and tenant. The defendant, appellant in this case, had been the tenant from year to year for three years before the bringing this suit, and at the date of the notice was tenant at sufferance, and by law entitled to one month's notice before plaintiff could recover in an action in ejectment. Respondent commenced this action within six days after notice served. We hold the notice was insufficient in law to justify the judgment.

A. A. Sargent, for Respondent.

Appellant entered under a written lease for one year. Such a lease does not create a tenancy from year to year. (1 Kernan, 494.) The Court finds that there was no extension of

Opinion of the Court.

the lease. There were no laches on the part of the landlord to enlarge the term. Notice of the landlord's desire to enter and a demand for possession were immediately given. The circumstances utterly rebut the idea of permission or sufferance. The tenant became simply a trespasser. The right to notice never arises where a lease expires by its own limitation. (So held in 21 Wend. 628.) Especially is this the case where all the acts of the landlord rebut any presumption that he consented to the continuance of the holding. The tenant, by the construction contended for by appellant, could avail himself of his own wrong to extend his term. We hold that the statutory provision requiring thirty days' notice to a tenant by sufferance does not apply to this case, where no such tenancy exists. The original entry of the tenant was lawful, it being under a written lease for one year, and if he had held over under such circumstances or for such length of time as to create a presumption of acquiesence of the landlord, he would be a tenant by sufferance. The necessity of reasonable notice to quit exists in cases of uncertain tenancy, to prevent the mischievous effects of a capricious and unreasonable determination of the estate. (2 Pick. 71; 4 Kent Com. 113.)

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