Opinion
Rehearing Denied Jan. 19, 1929
Hearing Granted by Supreme Court Feb. 18, 1929
Appeal from Superior Court, Solano County; W.T. O’Donnell, Judge.
Action for damages for ejectment by the California Packing Corporation against Manuel Lopez individually, and as administrator of the estate of John Lopez, deceased, in which defendants filed a cross-complaint. From the judgment, defendants appeal. Affirmed. COUNSEL
T.A. Farrell and George A. Work, both of Sacramento, and W.U. Goodman, of Fairfield, for appellants.
Rufus H. Kimball and Pillsbury, Madison & Sutro, all of San Francisco, and Joseph M. Raines, of Fairfield, for respondent.
OPINION
JAMISON, Justice pro tem.
This is an action of ejectment brought by respondent against appellants for 100 acres of land, known as lot 26 of Hastings Tract, and the pumphouse thereon or adjacent thereto.
Respondent claims to be the owner and entitled to the possession thereof and alleged that defendants had wrongfully and unlawfully entered into possession of the same and ejected respondent therefrom and wrongfully withholds such possession from respondent to his damage in the sum of $100.
Appellants answered, denying that they unlawfully entered into the possession of said property or unlawfully or wrongfully withheld the same from respondent or that plaintiff has been damaged as claimed.
Appellants also filed a cross-complaint, a demurrer to which was sustained, and thereupon, by stipulation, the cross-complaint was withdrawn.
Substantially, the facts of the case are about as follows: On February 15, 1924, the Wright Corporation, respondent’s grantor, entered into an agreement with the John Souza Company, by the terms of which the said company was permitted to occupy and grow asparagus during the cropping seasons of 1924 to 1934, inclusive, on the said 100 acres, and to grow intercrops thereon, as approved by the said corporation. By the terms of said agreement, the said corporation was to furnish tools, teams, feed for horses, and all asparagus roots necessary for the planting of said 100 acres, and to allow the said John Souza Company $5.50 per acre for preparing the land and planting said asparagus roots, as approved by the said Wright Corporation. That as directed by the Wright Corporation, the John Souza Company was to harvest, gather, wash, pack, and deliver said crop free on board the nearest landing designated by said Wright Corporation, and said corporation was to sell said crop and pay to John Souza Company 55 per cent. of the net proceeds of all asparagus and 75 per cent. of all intercrops, deducting expenses of sale of said crops, John Souza Company to pay 75 per cent. of the cost of containers for intercrops. The John Souza Company was a partnership, consisting of John Souza and John Lopez.
On February 23, 1925, John Souza assigned his interest in said contract to John Lopez, which assignment was accepted by the Wright Corporation. On March 6, 1925, John Lopez was accidentally killed, and administration was granted upon his estate to defendant Manuel Lopez, a brother of deceased, on February 10, 1926. John Lopez was not married, and his next of kin and his heirs were his father and mother, who resided in Portugal. Defendant Manuel Lopez was a minor at the time of his brother’s death and became of age November 17, 1925.
Manuel Lopez, immediately after his brother’s death, took charge of the growing crops on said 100 acres and farmed said land during the cropping season of 1925, raising an intercrop of beans thereon, cultivating and harvesting the asparagus growing thereon, and during that period was trying to get the Wright Corporation to substitute him as a party to said agreement in the place and stead of his deceased brother. In the meantime, he was occupying the upper portion of said pumphouse as a place of abode. In August, 1925, and January, 1926, the Wright Corporation paid the amounts called for by said agreement, that is, the John Lopez portion thereof, from the sale of the 1925 bean and asparagus crops, by delivering checks drawn in favor of John Lopez to defendant Manuel Lopez. On December 31, 1926, the Wright Corporation deeded to respondent with several thousand additional acres the 100 acres in controversy in this action. Respondent took possession of the 100 acres of land in January, 1926, and appellants thereupon ceased to farm the same but still continued to occupy the pumphouse.
At the close of the testimony, the court directed the jury to return a verdict for the respondent. This was done, and thereupon judgment for respondent was entered. In the case of Perera v. Panama-Pacific Int. Exposition Co., 179 Cal. 63, 175 P. 454, the court said: "It is now settled that the right of a court to direct a verdict is, with regard to the condition of the evidence, absolutely the same as the right of a court to grant a nonsuit; and also that a court may grant a nonsuit only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given. (Estate of Caspar, 172 Cal. 147, 155 P. 631.)"
There is nothing in the record indicative of the grounds upon which the trial court acted in directing the verdict.
However, it appears that one of the vital propositions that it was necessary for defendant to establish was that the agreement was a chattel real, that is to say, was a lease upon the premises in controversy. It is well settled that a tenancy from year to year is not terminated by the death of either the landlord or the tenant. Upon the death of the tenant of an estate from year to year, the estate still continues. Underhill on Landlord and Tenant, vol. 1-136.
In a long line of decisions, the courts of this state, beginning with Bernal v. Hovious, 17 Cal. 541, 79 Am.Dec. 147, up to In re Okahara, 191 Cal. 353, 216 P. 614, have uniformly held that agreements similar in character to the one involved in this case are merely cropping contracts and create no interest in the land. In re Okahara, supra, was a proceeding on habeas corpus to secure the release of Okahara for the alleged violation of the Alien Land Law. The agreement under which Okahara occupied and cultivated the land was in many respects similar to the agreement in the instant case. Under and by virtue of the conclusions reached by the Supreme Court in that case, that the agreement did not create an interest in the land, but that it was, in effect, nothing more than a cropping contract, it ordered the discharge of Okahara from custody. Shortly after this decision was rendered the Legislature at its biennial session in 1923 (St.1923, p. 1023, § 7) amended section 8 of the Alien Land Law (St.1921, p. lxxxv) by adding after the word "fee" the following: "Including cropping contracts which are hereby declared to constitute an interest in real property less than the fee," so that said section 8, as amended, reads as follows: "Any leasehold or other interest in real property less than the fee, including cropping contracts which are hereby declared to constitute an interest in real property less than the fee, *** by any alien mentioned in section 2 of this act, *** shall escheat to the State of California."
Appellants contend that as a result of this amendment all cropping contracts and agreements, whether made between citizens of this state or between a citizen and an ineligible alien, create an interest in the land, thus setting aside and casting into the discard the law of this state applying to cropping contracts between citizens thereof, as it has existed for more than 65 years. So far, this amendment, otherwise than as it affects ineligible aliens, has not been passed upon either by the Supreme or Appellate Courts of this state.
In the case of In re Nose, 195 Cal. 91, 231 P. 561, which was a proceeding on habeas corpus to discharge petitioner, a Japanese and ineligible alien, from custody upon a charge of violating the Alien Land Law, the court denied the writ, basing its reason for so doing upon the decision of the Supreme Court of the United States as given in the case of Porterfield et al. v. Webb et al., 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278, where that court held that the treaty between the United States and Japan gave no permission to the subjects of Japan to enjoy, use or have the benefits of land for agricultural purposes, and in the course of its opinion in the case of In re Nose, supra, the Supreme Court of this state said: "It is not necessary to decide whether or not the Legislature had the authority to provide that a ‘cropping contract’ in this class of cases shall impress lands affected thereby with an interest therein in favor of the cropper. For the purposes of this decision the effect of the contract upon real property may be regarded as surplusage." And, in the case of In re Dudley et al. v. Lowell et al. (Cal.) 257 P. 57, the court, in holding that a cropper contract entered into by an ineligible alien was a violation of the Alien Land Law, entirely ignored this last amendment of section 8 of said law, which provides that a cropping contract shall create an interest in land.
It is apparent that the sole intention of the Legislature in adding this amendment was for the purpose of using all the means at its command to prevent the agricultural lands of the state from passing into the occupancy and possession of ineligible aliens. For as was said by the Supreme Court in the case of Porterfield v. Webb, 195 Cal. at page 81, 231 P. 558: "Conceivably, by the use of such contract [a cropper contract], the population living on and cultivating the farm lands might come to be made up largely of ineligible aliens. The allegiance of the farmers to the state directly affects its strength and safety."
The cardinal rules of statutory construction require an interpretation of a statute which will give effect to the legislative intent, if consistent with the real object and purpose of the statute. Coulter v. Pool, 187 Cal. 181, 201 P. 120. To arrive at the legislative intent in the interpretation of statutes, the original purpose and object of the legislation must be considered. Mackey v. Mott, 25 Cal.App. 110, 142 P. 1082; Johnstone v. Baker, 167 Cal. 260, 139 P. 86.
We are of the opinion that in amending section 8 of the Alien Land Law, by adding thereto the provision that cropping contracts constituted an interest in real estate, the intention of the Legislature was to confine and limit that provision to the Alien Land Law alone, and that it did not thereby intend to, nor did it, annul or repeal the law as it now stands and as it has stood since the organization of the state that a cropping contract, except where an ineligible alien is a party to it, creates any interest in real estate.
The contract or agreement entered into between the Wright Corporation and the John Souza Company provided that the said company did not claim any interest in the real estate set forth therein. It is well established that a person may waive any civil right, and the benefit of any statute or Code provision in respect to his rights and obligations, unless such waiver would be against public policy. Civ.Code, § 3513; Cal.Juris. vol. 25, p. 929.
Regardless of the question as to whether or not the said agreement created an interest in the land, it is evident that this provision would preclude John Souza Company or their assigns or successors in interest from claiming such interest.
The undisputed evidence in this case also shows that the respondent purchased the land for value without notice of appellants’ claim that the John Lopez estate or Manuel Lopez had any interest in said land.
Appellants contend that Manuel Lopez was in possession of the premises in controversy at the time the Wright Corporation sold the same to the respondent and that such possession was notice to respondent. The authorities are uniform in holding that the possession necessary to put a purchaser on notice must be open, notorious, and exclusive. Campbell v. Grennan, 13 Cal.App. 481, 110 P. 156. Notice to be effectual must be precise and complete enough to put the purchaser on his guard. Kowalsky v. Kimberlin et al., 173 Cal. 506, 160 P. 673. There is practically no evidence that tends in any degree to show notice on the part of respondent.
Witness Tonnengen, superintendent of respondent, who, on behalf of respondent, made the examination of the property in controversy before its purchase by respondent, stated that in making that examination he was accompanied by Wm. G. Wright, the president of the Wright Corporation, and that Wright informed him that there were no incumbrances against the land, that Wright made no mention of the fact that appellants or either of them were in possession of said land or claimed any interest therein by lease or otherwise; nor did Tonnengen see Manuel Lopez on the land, nor anything indicating such possession. There is an entire lack of evidence showing that respondent had any notice or knowledge that appellants claimed any interest in the said 100 acres or were in possession of the same prior to its purchase thereof.
In their brief, appellants rely to some extent upon the doctrine of waiver and also estoppel in pais as a defense to this action. No such defense was set up in the answer. It appears to be well settled that a party who has an opportunity to plead an estoppel, upon which his cause of action or defense depends, must do so. 10 Cal.Juris. p. 654. Waiver is an affirmative defense, and a defendant desiring to take advantage of it must set up in his answer the facts upon which he bases his claim. Wienke v. Smith, 179 Cal. 220, 176 P. 42.
The judgment is affirmed.
We concur: HART, Acting P.J.; PLUMMER, J.