No. 2,194.

#### FREDERICK MASON, Respondent, *v.*MICHAEL L. WOLFF, JOSEPH R. WHITEMAN, WILLIAM H. WOLFF, AND WILLIAM RYAN, Appellants.

Evidence. — Constructive Possession. — Evidence of permission by a lessor to his lessee to extend his possession beyond the limits of the leased premises, is inadmissible, in order to show constructive possession of the exterior limits in the lessor.

Idem. — In order to show such constructive possession in the lessor, it must appear that the lessee entered by virtue of such license.

Incompetent Evidence. — Where incompetent evidence was admitted by the Court below against objection, the inference is, that the evidence was considered entitled to some weight in the determination of the issue of fact which was being tried, and it was equally inadmissible whether the case was tried by the Court or before a jury.

Evidence. — Judgment and Findings in a Former Action. — The judgment and findings in a former action are inadmissible in evidence in a second action, unless accompanied by the judgment roll.

Dnlaweul Detainer.. — Recovers op Rent Due. — In an action for unlawful detainer, there is no error in finding the amount of rent due at the time of the trial.

Landlord and Tenant. — Action on Lease. — In an action upon a lease, where ■ the question of title is not involved and cannot be raised, the consequence of entering into the contract can only be avoided by showing some fraud or mistake which would have been sufficient to set aside the lease itself.

Appeal from the County Court of tbe City and County of San Francisco.

Tbis cause was tried by tbe Court without a jury. In tbe course of tbe trial tbe plaintiff offered in evidence tbe findings and judgment in tbe former action of *Mason*v. *Michael Wolff*and *Whiteman*for tbe balf acre of upland. Defendants objected to tbe evidence on tbe ground tbat it was not between tbe same parties, called for different land, and was irrelevant, incompetent and immaterial. Tbe Court overruled defendant’s objections and admitted' tbe evidence.

Judgment was for plaintiff against all tbe defendants, for restitution of tbe premises described in the complaint, and against tbe defendants Michael L. Wolff and Joseph E. Whiteman for three times tbe amount of rent due at tbe time of tbe trial, amounting to 1600, and costs.

*247Defendants moved for a new trial, wbicb was denied. From tbe judgment, and tbe order denying defendants’ motion for a new trial, tbis appeal is taken.

Tbe other facts are stated in tbe opinion.

*Bennett, Machín &*Owen, for Appellants.

*J. M. Seawdl,*for Bespondent.

Tehple, J.,

delivered tbe opinion of tbe Court, Wallace, J., and CROCKETT, J., concurring:

Tbis action was brought under tbe Forcible Entry and Unlawful Detainer Act, against a tenant, to enforce a forfeiture for non-payment of rent. Tbe action is brought not only against Michael Wolff and Whiteman, tbe original tenants, but also against William H. Wolff and one Eyan, who, it is alleged, have entered into possession under tbe original tenants.

Tbe answer admits tbe lease, but denies that defendants, William H. Wolff or Eyan, entered under tbe tenants of plaintiff, or with their consent, but avers that they bold a portion of tbe premises sued for under an adverse claim. It denies that plaintiff is tbe owner of tbe property, and avers that Michael Wolff and Whiteman were in possession prior to tbe execution of tbe lease of a portion of tbe premises.

It appears from tbe evidence that tbe premises are partly upland, or land above high tide, and partly marsh or mud flat, wbicb is covered by high tide. Tbe whole tract consists of about two acres, about one half acre of wbicb is above high water. Upon tbis half acre were several buildings, among them a tannery, some of tbe vats of wbicb were upon tbe tide land. Tbe tract was inclosed on three sides, partly by fences and partly by a ditch. On the.remaining side was tbe Bay. Evidence was offered tending to show that at tbe time tbe lease was executed, William H. Wolff bad a bouse upon tbe marsh land, where be lived; that be inclosed a portion of tbe land, and kept upon it pigs and poultry; that Michael Wolff and Whiteman never bad any *248occupation of tbe marsb land, or exercised anv acts of ownership over it, or bad any connection with William E. Wolff in bis possession and occupation. Tbe claim is that William H. Wolff held tbe marsb land under an independent claim, and is, therefore, not estopped by tbe lease to bis brother, Michael Wolff, and Whiteman. Tbe plaintiff claims that be was there as a member of tbe family of bis brother, or as an enroloye, and therefore bad no independent possession.

Tbe plaintiff introduced evidence to show that Mason bad possession of tbe half acre prior to tbe possession of Wolff and Whiteman, and bad previously leased tbe premises to one King, and also to one Garagon, and that Wolff and Whiteman entered by virtue of a purchase from King. Tbe lease to Garagon, as also that to King, were introduced in evidence. These leases were in terms for tbe one half acre of land only. Tbe plaintiff, being called as a witness on bis own behalf, stated that Garagon wanted tbe half acre for a tannery, and that be selected this half acre, and tbe lease was reduced to writing. After be bad selected this half acre, be (Mason) told him that be might extend bis possession over tbe tide land also. Tbe evidence does not show that Garagon entered upon tbe tide land in pursuance of this permission, or even that be fenced it subsequently to this lease. Tbe purpose of tbe evidence, evidently, was to extend tbe constructive possession of Mason beyond tbe lands described in tbe lease. Outside of tbe occupation of Garagon and King, it does not appear that Mason bad any claims to those lands whatever. Presumptively they belonged to tbe State, and neither Mason nor defendants can assert title to it unless they have acquired it by actual grant from *the*State. In view of tbe issue which bad arisen in tbe case, as to whether there was a separate bold-ing and a distinct possession of tbe marsb land, it became very material on tbe part of Mason to establish that Gara-gon held tbe marsb land as well as tbe upland as bis tenant. It is true this was not tbe direct point at issue, but it is contended that Wolff and Whiteman succeeded to tbe pos*249session of King, who belci under a lease similar to that of Garagon, by purchase, and this evidence would tend to show that Yfolff and "Whiteman took possession of the entire tract.

The evidence was admitted against the objection of the defendants, and its admission is assigned as error. It does not appear that prior to this lease Mason even claimed this land, or that there was any reason whatever why Garagon should ask his permission to inclose it, nor does it appear as a fact that he did ask permission. Parties cannot establish title by possession to land which others have inclosed by simply proving that they told the parties inclosing that they might do so. It must also appear that they entered by virtue of such license. Had Mason shown even a previous claim to the land, the presumption might be different. But even then, the important fact in this case would not be made out. It was offered to show that Garagon was in possession of it as the tenant of Mason, or by his permission. As already stated, if this were so, it would tend to show that when Wolff and Whiteman succeeded to the possession of Garagon, they took possession of the whole tract as tenants of Mason. Of course, such evidence would not be conclusive, but it would tend to establish that fact. We think this evidence inadmissible, and none the less so because the case was tried by the Court without a jury.

If the Court admits incompetent evidence against'objection, no other inference can be drawn than that the evidence is considered entitled to some weight in the determination of the issue of fact which is being tried.

We think, also, the findings and judgment in the former case in the County Court, against Michael Wolff and White-man, were improperly admitted against the objections of defendants. It was not competent evidence unless the judgment roll was offered in connection with it, from the inspection of which it could be seen whether the Court had jurisdiction to render the judgment. When properly offered, it was competent as against Wolff and Whiteman, and would be conclusive against them — if regularly obtained — of the fact of their tenancy as to the land described in it.

*250We think there was no error in rendering judgment for the amount, of rent due at the time of trial. Section 13 of the Act concerning Forcible Entries and Unlawful Detain-ers (p. 655, Statutes 1863) clearly authorizes this. The rent there intended must be the rent specified in the lease. It would, perhaps, not follow that a further sum might not also be recovered as damages, if it were shown that the plaintiff suffered a greater loss by the unlawful detainer; but the Legislature seems to have provided that, in case of holding over, the tenant shall at least pay the stipulated rent.

We do not think the principle established in *Tewksbury v. Magraff,*(33 Cal. 237), that a tenant may, in certain cases, dispute his landlord’s title without first delivering possession of the demised premises, applies to actions of this character. Here the question of title is not involved, and cannot be raised. In a certain sense, the suit is brought upon the lease, and the consequence of entering into that contract can only be avoided by showing some fraud or mistake, which would have been sufficient to set aside the lease itself.

A new trial must be had, and we see no utility in discussing the other points raised.

Judgment and order reversed, and new trial ordered.

By

Bhodes, C. J.:

I concur in the judgment, and also in the opinion, except in so far as it holds that the principle of *Tewksbury*v. *Magraff*is not applicable to cases of this character.

Speague, J., expressed no opinion.