Heffernan

This is an action of unlawful detainer. The cause was tried by the court and defendant had judgment. Plaintiff moved for a new trial which was denied and she appeals from the judgment and order. It is alleged in the complaint that, on or about March 25, 1906, plaintiff's intestate by lease demised and let to defendant the premises described as follows: N1/2 of sec. 22, T. 40 N., R. 4 W., M. D. M., situated in Siskiyou County, a copy of which said lease is as follows: "This certifies that I have this day, March 25th, 1906, leased to J. T. B. Davis, the Van place on sec. 22, T. 40, N. R., 4 W. M. D. M. for the term of six years from date, at a yearly rental of one hundred and fifty dollars, per year, payable yearly in advance. The tenant to improve the place and keep in good order. "J. O. WELSH." *Page 297 It is further alleged that "defendant went into possession and occupation of said premises by virtue of said lease and still holds and occupies the same"; that no part of the said yearly rental has been paid and the whole thereof is due and unpaid, amounting to seven hundred and fifty dollars; that, on November 14, 1912, "within one year after the last yearly rent became due as…

The complaint distinctly alleges that defendant went into possession of the premises under the lease pleaded. It is true that there was no evidence that defendant did so enter into possession and the offer made by plaintiff does not in terms call for an answer by the defendant, called as a witness for plaintiff, to the direct point of his entering into possession under or by virtue of the lease. But it seems to us that enough appeared to show that the trial court was of the opinion that not only was the paper signed by the lessor incompetent to establish any right in plaintiff, but that any evidence tending to show by parol proof of entry under the so-called lease would be equally incompetent. If it should turn out on a new trial that defendant never knew that such a document existed and therefore did not enter into possession under it, a different situation would be presented. In such event plaintiff should be permitted so to amend her complaint as to meet the facts as they existed and if, as is contended by defendant, she can recover only for use and occupation irrespective of the lease, plaintiff should be given an opportunity to do so by amending her complaint. We do not think…