Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-27

We have considered the other as
signments of error and find that they
are without merit The judgment of
the lower court IS affirmed.
Cook V. Howard, Douglas County.
Mary A. Cook, respondent, V. A. A.
Howard, appellant. Appeal from the
circuit court for Douglas county.
The Hon. j. w. Hamilton, judge. Ar
gued and submitted July IL, 1911. c..
S. Jackson (and B. E. Steel, on
brief for appellant. No appearance
for respondent. (Cardwell & Watson
on brief, Mcbride, j. Reversed
and remanded.
This is an action for forcible entry
and detainer. The complaint is as
follows:
plaintiff for her cause of action
against the defendant, complains and
alleges: That on or about March "a
1901 plaintiff executed a lease to
the defendant for the use of the fol-
lowing described premises to-wit:
The north half and the southeast
quarter of the northwest quarter of
section 22, township 2S, south of
range 4 west of the Willamette Mer-
idian in Douglas county, Oregon, or
what is generally known as the old
Porter place of which the plaintiff
is the owner and legal holder there
of.
THAT by the terms of said lease
the said tenancy has been a tenancy
at sufferance and that plaintiff has
served notice upon the defendant to
vacate, but defendant disregarding
said notice has continued to unlaw-
fully remain on the said premises,
for which said defendant refuses to
pay rent.
Wherefore plaintiff demands a
Judgment, against the defendant as
follows; That the defendant be re-
quired to deliver up the possession
of said premises forthwith. That de-
fendant be required to pay reason
able rental for said premises and the
costs and disbursements herein laid
out and expended"
The following sections of Lords
Oregon Laws are applicable to the
questions raised on this appeal:
Sec. 1866. The following shall be
deemed causes of unlawful holding
by force within the meaning of this
chapter
81. When the tenant or person in
possession of any premises shall fail
or refuse to pay rent within 10 days
after the same is due on the lease or
agreement under which he holds, or
to deliver possession of said prem
ises after being in default on pay
ment of rent for 10 days.
"2 When the lease by its terms
has expired, and has not been re-
newed, or when the tenant or person
in possession is holding from month
to month, or year to year, and re-
mains in possession after notice to
quit, as in this act provided, or is
holding contrary to any condition or
covenant of such lease or is holding
without any written lease or agree
ment therefor"
"Sec. 1869. In such action it shall
be sufficient to state in the complaint
description of the premises with
convenient certainty, that the defen-
dant is in possession thereof, that he
entered upon the same with force, or
unlawfully holds the same with
force, as the case may be, and that
the plaintiff is entitled to the posses
sion thereof"
Plaintiff had judgment and defen-
dant appeals.
Mcbride, ]. Tested by the re-
quirements Of the above sections OF
the statute, the complaint fails to
state a cause of action. 1t nowhere
states that defendant entered by
force or that he holds by force, as
required by Sec. 1869. Nor does it
state facts equivalent to an unlawful
holding over by force, under the pro-
vision of Sec. 1866.
The complaint states that plaintiff
executed lease to defendant, but
does not give the terms of the lease
and states the legal conclusions, that
by its terms defendants tenancy has
F., been a tenancy at sufferance. IAN
estate at sufferance is where one
comes into possession of land by a
lawful title but keeps it afterwards
without any title at all. AS If man
takes a lease for a year and after a
year is expired continues to hold the
J premises without any fresh lease