Brummagim v. Spencer , 29 Cal. 661 ( 1866 )

By the Court, Rhodes, J.

The first ground of the defendant’s demurrer is fully answered by the case of Caulfield v. Stevens, 28 Cal. 118. In that case we held that the general terms—“ actions of forcible entry and detainer ”—as employed in the Constitution of this State, included actions for the unlawful holding over by tenants, and that jurisdiction of those actions was committed by the Constitution to the County Courts.

The only remaining ground that requires attention, is that . the plaintiff does not allege a demand'of the rent, previous to the making of the demand for the surrender of the possession of the premises. The Act of 1863, concerning forcible entries and unlawful detainers, (Stats. 1863, p. 562) differs in some respects from the earlier Acts upon the same subject. Under those Acts, it was requisite to make a demand .of the rent, and, after the expiration of three days, the rent remaining unpaid, to demand the delivery .of the possession of the premises, and the failure of the tenant to pay the rent within three days after the demand of the possession of the premises, worked a forfeiture of the estate of the tenant. By the amendatory Act of 1862 (Stats. 1862, p. 420) a clause was 'added to section thirteen, the object of which was to avoid the strictness required at common law, as to the time and place of making the demand of rent, and the amount of rent to be demanded, in order to work a forfeiture; but it was still necessary to demand the rent, and after the expiration of three days therefrom, to demand the possession, and the tenant then had three days further time in which to pay the rent, to save the for-feiture.

The third section of the Act of 1863 declares it to be unlawful for the tenant to hold over the lands after any rent has become due and remains unpaid for the space of three days; and section four prescribes that if the landlord shall make'a demand in writing of the tenant after the rent has become due, that he deliver the possession of the premises, and the tenant shall. refuse or neglect for the space of three days to pay the rent or quit the possession, the tenant “ shall be deemed guilty of an unlawful detainer.” The intent of the statute, as gathered from sections three and four, in case of non-payment of rent, was to make the failure of the tenant to pay the rent within the space of three days after a demand of the possession of the leased premises, because of the rent being unpaid, operate as a forfeiture of the estate of the tenant. The declara- , tion of the statute, that in such case the tenant shall be deemed guilty of an unlawful detainer, necessarily implies a forfeiture of his estate in the leased premises. Neither of those sections require that a demand of the rent shall be made previous to the demand of the possession of the premises.

The Act of 1863, after having provided for a forfeiture, as we have seen, retained the clause we have mentioned as added to section thirteen by the amendatory Act of 1863, and it forms section five of the Act of 1863. Without that section, there would be no difficulty in holding that a demand of the rent was unnecessary; but the section must be read in connection with the other sections bearing upon the same subject matter, and be so construed, if possible, as to make the several provisions harmonize, and avoid a seeming inconsistency. Unless the section is disregarded entirely, we must hold that the rent should be demanded, for the provision that it shall not be necessary, in order to work a forfeiture, to make the demand on the day the rent becomes due, but that it may be made at any time within a year thereafter, and for the amount then due and unpaid, and that it may be made of the tenant in person elsewhere than on the premises,‘necessarily implies that a demand of the rent must be made before the landlord can proceed against the tenant as for a forfeiture. The demand of the rent must accompany or precede the demand of the possession. It would be useless after that time, for the tenant is required to pay the rent within the three days ensuing the demand of the possession, in order to save the forfeiture. We cannot hold that it must precede the demand of the possession either three days, as contended for by the defendant, or any other time, for the statute has not so provided, either expressly or by implication. We are, therefore, of the opinion that a demand of the rent, made at the time of making the demand of the possession of the premises, is a sufficient compliance with the requirements of the'statute.

Judgment reversed and cause remanded, with directions to the Court below to overrule the demurrer.