Sanderson, J., delivered the opinion of the Court:
This action was brought under the Statute of 1866, in relation to forcible entries and unlawful detainers. (Stats. 1865—6, p. 768.) The first section of that statute defines a forcible entry; the second defines a forcible detainer; and the third declares that an unlawfid entry, if made in the night time, or during the absence of the occupant of the premises, followed by a demand and a refusal to surrender for a period of five days, shall be deemed to be a forcible detainer; provided, that a party shall be deemed to be an actual occupant of lands within the meaning of that section, if he has been in the peaceable and undisturbed possession of such lands within five days next preceding such unlawful entry.
The case was tried by the Court below without a jury, and has been brought here upon the pleadings, findings and con[418]*418elusions of law, which conclusions were in favor of the plaintiff.
The complaint contains two counts. The language of the first is, that at the time of the entry, “ the plaintiff was, ami for a long time before that, had been in the actual, peaceable and quiet possession, etc. * * * That while so in the actual, peaceable and quiet possession of said premises, the said defendants, on, etc., * * * in the night time, and during the absence of the plaintiff, with force and violence did break, etc., * * * and does fraudulently and violently detain the possession, etc., * * * and that said plaintiff afterward, on, etc., * * * went upon said premises and demanded possession, which was refused by the defendants, and still is refused.”
In the second count, an “ unlawful” entry, a “forcible” and “violent” expulsion of the plaintiff, and an “‘illegal, forcible and unlawful detainer,” are all alleged without any demand for a surrender of the possession.
It appears from the findings that the premises m question (a lot 25x100 feet, with a dwelling house, kitchen and shed thereon), are a part of a tract of land containing about ten and a half acres in the City of San Francisco, which tract was surrounded by a post and board fence, four boards high, most of which had been erected by the plaintiff, and the remainder by the occupants of adjoining lands ; that at the time of the entry, the plaintiff was residing with his family in another dwelling house erected by him within this enclosure ; that the dwelling house into which the entry was made was unoccupied, and there was no furniture therein, except a broom; that the doors were not fastened, and the entry was made without force, violence or menace of any kind, but was made in the absence of the plaintiff, and without his knowledge; that the entry was made without fraud, and the possession was retained without fraud, force, violence or menace of any kind; and that a demand for the surrender of the possession was made by the plaintiff, and the defendants had failed to comply with the demand for a period of five days thereafter.
First—The first two points made by the appellants are, [419]*419that the complaint does not support the findings, because, First—It omits to state that the plaintiff was the £ £ occupant ” of the premises ; or, Second—That he was the occupant within five days preceding the entry.”
These points are made upon the theory that the cause of action shown by the findings, so far as they show any cause of action, is a forcible detainer, as defined in the third section of the statute, and that to maintain it the complaint must show, First—That the entry was made in the night time, or, if in the day time, during the absence of the plaintiff from the premises; Second—That the plaintiff was in the actual and not merely the constructive possession or occupancy of the premises within five days preceding the entry; Third—That the entry was unlawful; and, Fourth—That a demand for possession had been made, followed by a refusal to comply, continued for a period of five days.
The question as to how a complaint under this statute ought to be framed, came before us in the case of Valencia v. Couch (32 Cal. 342.) We there held that the statute defined two distinct offenses: First—Forcible entry; Second—Forcible detainer. That of the latter it gave two distinct definitions, one in the second, and the other in the third section; that the statute also provided that fraud on the part of the defendant, if any there should be, should be considered as a feature of each offense, and a ground for special damages; and that, therefore, there were, under the statute, four separate causes of action, or grounds for relief: First—Forcible entry; Second—Forcible detainer, as defined in the second section; Third—Forcible detainer, as defined in the third section; Fourth—Fraud as an adjunct of each; and that these causes of action might all be united in the same complaint, but must be separately stated, or the complaint would be demurrable upon that ground. Our conclusions, so far, were founded upon the provisions of the Civil Practice Act, which are made applicable to proceedings under this statute. (Sec. 7.) But we held, further, that this statute was more liberal in the matter of amendments than the Practice Act, which conclusion was founded upon the tenth section, which provides, in effect, that if the plaintiff sues upon one cause [420]*420of action only, and Ms testimony makes another, or if he sues upon two, and his testimony makes a third, it shall be the duty of the Court, of its own motion, to order the complaint to be amended, so as to suit the testimony. This provision distinguishes proceedings under this statute from proceedings under the Civil Practice Act, and affords a convient and ready escape from all the consequences which usually follow a variance between the averments of the complaint and the testimony.
Tested by the foregoing rules, the complaint in this case is undoubtedly faulty. Although it contains two counts, yet each count is demurrable upon the grounds that it contains separate causes of action, which are not separately stated. It sets out a forcible entry; a forcible detainer, as defined in the second section of the statute, and attempts, at least, to set out a forcible detainer, as defined in the third section. The second count sets out an unlawful entry, a forcible expulsion, and an “illegal,” forcible, and “unlawful” detainer. The defendants, however, did not demur upon the ground that separate causes of action were not separately stated, and this ground of objection was, therefore, waived.
Further—Tested by the foregoing rules, the alleged variance between the findings and complaint becomes a matter of little moment. If, as contended by counsel, the complaint failed to state the particular cause of action which the Court found from the testimony, it was the duty of the Court to order the complaint amended, and, doubtless, 'the Court would have done so had its attention been called to the matter. But, be that as it may, it is obvious that, under the very liberal provisions of the tenth section of the statute, We cannot reverse a judgment merely upon the ground that there is a variance between the complaint and the proofs, if the complaint states any cause of action whatever.
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Sanderson, J., delivered the opinion of the Court:
This action was brought under the Statute of 1866, in relation to forcible entries and unlawful detainers. (Stats. 1865—6, p. 768.) The first section of that statute defines a forcible entry; the second defines a forcible detainer; and the third declares that an unlawfid entry, if made in the night time, or during the absence of the occupant of the premises, followed by a demand and a refusal to surrender for a period of five days, shall be deemed to be a forcible detainer; provided, that a party shall be deemed to be an actual occupant of lands within the meaning of that section, if he has been in the peaceable and undisturbed possession of such lands within five days next preceding such unlawful entry.
The case was tried by the Court below without a jury, and has been brought here upon the pleadings, findings and con[418]*418elusions of law, which conclusions were in favor of the plaintiff.
The complaint contains two counts. The language of the first is, that at the time of the entry, “ the plaintiff was, ami for a long time before that, had been in the actual, peaceable and quiet possession, etc. * * * That while so in the actual, peaceable and quiet possession of said premises, the said defendants, on, etc., * * * in the night time, and during the absence of the plaintiff, with force and violence did break, etc., * * * and does fraudulently and violently detain the possession, etc., * * * and that said plaintiff afterward, on, etc., * * * went upon said premises and demanded possession, which was refused by the defendants, and still is refused.”
In the second count, an “ unlawful” entry, a “forcible” and “violent” expulsion of the plaintiff, and an “‘illegal, forcible and unlawful detainer,” are all alleged without any demand for a surrender of the possession.
It appears from the findings that the premises m question (a lot 25x100 feet, with a dwelling house, kitchen and shed thereon), are a part of a tract of land containing about ten and a half acres in the City of San Francisco, which tract was surrounded by a post and board fence, four boards high, most of which had been erected by the plaintiff, and the remainder by the occupants of adjoining lands ; that at the time of the entry, the plaintiff was residing with his family in another dwelling house erected by him within this enclosure ; that the dwelling house into which the entry was made was unoccupied, and there was no furniture therein, except a broom; that the doors were not fastened, and the entry was made without force, violence or menace of any kind, but was made in the absence of the plaintiff, and without his knowledge; that the entry was made without fraud, and the possession was retained without fraud, force, violence or menace of any kind; and that a demand for the surrender of the possession was made by the plaintiff, and the defendants had failed to comply with the demand for a period of five days thereafter.
First—The first two points made by the appellants are, [419]*419that the complaint does not support the findings, because, First—It omits to state that the plaintiff was the £ £ occupant ” of the premises ; or, Second—That he was the occupant within five days preceding the entry.”
These points are made upon the theory that the cause of action shown by the findings, so far as they show any cause of action, is a forcible detainer, as defined in the third section of the statute, and that to maintain it the complaint must show, First—That the entry was made in the night time, or, if in the day time, during the absence of the plaintiff from the premises; Second—That the plaintiff was in the actual and not merely the constructive possession or occupancy of the premises within five days preceding the entry; Third—That the entry was unlawful; and, Fourth—That a demand for possession had been made, followed by a refusal to comply, continued for a period of five days.
The question as to how a complaint under this statute ought to be framed, came before us in the case of Valencia v. Couch (32 Cal. 342.) We there held that the statute defined two distinct offenses: First—Forcible entry; Second—Forcible detainer. That of the latter it gave two distinct definitions, one in the second, and the other in the third section; that the statute also provided that fraud on the part of the defendant, if any there should be, should be considered as a feature of each offense, and a ground for special damages; and that, therefore, there were, under the statute, four separate causes of action, or grounds for relief: First—Forcible entry; Second—Forcible detainer, as defined in the second section; Third—Forcible detainer, as defined in the third section; Fourth—Fraud as an adjunct of each; and that these causes of action might all be united in the same complaint, but must be separately stated, or the complaint would be demurrable upon that ground. Our conclusions, so far, were founded upon the provisions of the Civil Practice Act, which are made applicable to proceedings under this statute. (Sec. 7.) But we held, further, that this statute was more liberal in the matter of amendments than the Practice Act, which conclusion was founded upon the tenth section, which provides, in effect, that if the plaintiff sues upon one cause [420]*420of action only, and Ms testimony makes another, or if he sues upon two, and his testimony makes a third, it shall be the duty of the Court, of its own motion, to order the complaint to be amended, so as to suit the testimony. This provision distinguishes proceedings under this statute from proceedings under the Civil Practice Act, and affords a convient and ready escape from all the consequences which usually follow a variance between the averments of the complaint and the testimony.
Tested by the foregoing rules, the complaint in this case is undoubtedly faulty. Although it contains two counts, yet each count is demurrable upon the grounds that it contains separate causes of action, which are not separately stated. It sets out a forcible entry; a forcible detainer, as defined in the second section of the statute, and attempts, at least, to set out a forcible detainer, as defined in the third section. The second count sets out an unlawful entry, a forcible expulsion, and an “illegal,” forcible, and “unlawful” detainer. The defendants, however, did not demur upon the ground that separate causes of action were not separately stated, and this ground of objection was, therefore, waived.
Further—Tested by the foregoing rules, the alleged variance between the findings and complaint becomes a matter of little moment. If, as contended by counsel, the complaint failed to state the particular cause of action which the Court found from the testimony, it was the duty of the Court to order the complaint amended, and, doubtless, 'the Court would have done so had its attention been called to the matter. But, be that as it may, it is obvious that, under the very liberal provisions of the tenth section of the statute, We cannot reverse a judgment merely upon the ground that there is a variance between the complaint and the proofs, if the complaint states any cause of action whatever. The most that we could do would be to direct the Court below to cause the complaint to be amended; and even that will not be done where, as in this case, the record fails to show that the Court below, upon request, refused to order the complaint amended.
Second—It is next argued that the case made by the find[421]*421ings does not fall within the statute against forcible entries and detainers.
The case has been brought here upon findings to which no exception was taken in the Court below, upon the ground that they were defective or wanting in any respect. We cannot, therefore, as counsel seems to suppose, disturb the judgment, because all the facts required in law to sustain the judgment have not been expressly found, if such should prove to be the case. As to such facts, if any there be, findings which will.support the judgment are implied. (Prac. Act. Sec. 180; Henry v. Everts, 30 Cal. 426; Sears v. Dixon, 33 Id. 326; Morrill v. Chapman, 35 Id. 86; Carpentier v. Small, Id. 355.) We cannot, therefore, disturb the judgment, unless we find that some facts have been expressly found by the Court below which are repugnant to it.
It is expressly shown by the findings that the entry and detainer were without force, violence, fraud or menace. Such being the case, the finding is repugnant to the judgment, so far as it can be said to be founded upon either a forcible entry or a forcible detainer, as defined in the second section of the statute, or upon the fifth section in relation to fraud. This is conceded, and the only question we have to deal with in this connection is whether any of the facts expressly shown by the findings are inconsistent with the judgment, considered as a judgment for a forcible detainer, as defined in the third section. That section reads as follows :
“ Sec. 3. If any person shall, in the night time, or during the absence of the occupant of any lands or tenements, unlawfully enter upon such lands or tenements, and shall, after demand made for the surrender of such premises for the period of five days, refuse to surrender the same to such former occupant, such person shall be deemed guilty of a forcible detainer, and may be proceeded against as herein provided for such offense; provided, that the party shall be deemed the actual occupants of lands who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands or tenements.”
It is claimed that the findings show that the entry was not unlawful, and that the plaintiff was not the occupant of the premises in the sense of this statute.
[422]*422The question as to what constitutes an unlawful entry within the meaning of this statute has been repeatedly before this Court, and it has been uniformly declared to be a peaceable entry made in bad faith—-that is to say, without any bona fide claim or color of a legal right to enter, and not a peaceable entry made in good faith, although wrongfully, that is to say, in the belief that there is a legal right to enter. (Dickinson v. Maguirre, 9 Cal. 48; Janson v. Brooks and Bachman y. Whitney, 29 Id. 220; Thompson v. Smith, 28 Id. 532.) In view of this construction, we further held, in the case last cited, that a defendant in an action for an unlawful entry might produce evidence of title, not for the purpose of establishing or trying title, but for the purpose of showing that his entry, if -wrongful, was not made with a wrongful intent, but in good faith, and in the belief that he had a legal right to enter.
Upon the question whether the entry in this case was made in good faith, under claim and color of right, or with a wrongful intent, that is to say, wilfully, without any claim of right asserted in good faith, the findings are silent. Such being the case, a finding that the entry was made without claim or color of right is implied for the reason already stated.
Upon the question of occupancy, it is claimed that it was requisite for the plaintiff to show actual occupation or personal presence in the house within five days of the entry, and that, inasmuch as the finding expressly shows that such was not the fact, it is repugnant to the judgment.
This point is founded upon the use of the word “ occupant” in the body of the section; but, in view of the proviso, we consider that the true intent and meaning of the Legislature is found in the words “ peaceable and undisturbed possession.” As it might do, the Legislature defined what is meant by the word “occupant,” and we must look to the definition and not to the word. Looking, then, at the words “ peaceable and undisturbed possession,” we consider that a party who seeks relief under the third section is not required to show a possession which differs at all from the possession which he would have to show were he seeking relief under [423]*423the first or second sections. We can see no sensible reason why a possession that is sufficient to sustain a charge of forcible entry should not also be sufficient to sustain a charge of unlawful entry, and we find nothing to the contrary in the language of the statute.
All the cases agree that, to sustain a charge of forcible entry, an actual, peaceable and exclusive possession must be shown; but it has never been considered, so far as we are advised, that an actual residence—a personal presence—was, in all cases, indispensable to such a possession. On the contrary, “actual possession,” said Mr. Justice Baldwin, in Minturn v. Burr, “ as much consists of a present power and right of dominion as an actual corporal presence in the house. ” (16 Cal. 109.) In that case, as in this, the premises were empty and unoccupied; but that fact was not considered inconsistent or repugnant to the charge of a forcible entry. Under the rule in that case, we hold that the plaintiff might have had “a peaceable and undisturbed possession” of the premises in question within five days before the entry, notwithstanding the fact that he did not reside in the house during any portion of that time.
Judgment affirmed.