Spangler

appeal is from an order denying plaintiff’s motion for a new trial in an action under section 1161, Code of Civil Procedure, to recover the possession of certain orchard land in Santa Clara county.

The defendant went into possession under a written lease-from his mother, the plaintiff, to himself and to his sister, Annie Leal. The term was for five years, to commence November 1, 1902!, with the privilege of an additional five years, provided that the lessees elected to avail themselves of the privilege prior to July 1, 1907. The rent reserved was $600 per annum, payable annually on the first day of October. The lease provided that the lessees should personally occupy and cultivate the premises and should not underlet any portion thereof, nor assign the lease, without the written consent, of the lessor, under penalty of forfeiture.

May 8, 1905, without the consent of the lessor, Annie Leal made an assignment to the defendant of all her interest in. the lease; and in June, 1907, by a notice in writing, the defendant notified the plaintiff of this assignment, and also that he elected in his own name to renew the lease for an additional term of five years.

The…