Treat v. Stuart

Decided July 1, 1855

California Supreme Court · decided 1855-07-01

Forcible entry and detainer for certain property in San Francisco, Defendants counsel requested the Court to charge the jury that “plaintiff in order to recover must prove an actual possession in himself and not in a tenant, for if a tenant was in possession at the time of the entry the action must be in the tenant’s name.” The Court refused the charge, and overruled a motion for a new trial, and defendants appealed.

Cited by 2 later decisions — most recently May 1886

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1855-07-01

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

¶1Heydenfeldt, J., concurred.

¶2The 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.

¶3The 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.

¶4The refusal of the Court below so to instruct the jury was error.

¶5Judgment reversed, with costs.