Treat v. Stuart

5 Cal. 113

Opinion

Murray, C. J, delivered the opinion of the Court.

Heydenfeldt, J., concurred.

The plaintiff in an action of forcible entry and unlawful detainer, must show an actual peaceable possession in himself at the time of the entry. A landlord cannot sue in this form in his own name for an unlawful entry upon the possession of his tenant.

The remedy is a summary one given by statute to protect the possession and cannot be extended by implication to any others than the real occupants.

The refusal of the Court below so to instruct the jury was error.

Judgment reversed, with costs.