Frazier

Action to recover possession of certain land in San Diego County, with damages for the withholding thereof.

The possession of the land by the defendant at the time when the action is commenced is a necessary element of the plaintiff’s right to recover in an action of this nature, and must be alleged in the complaint; and, being an issuable fact, must, if denied in the answer, be established at the trial. Under the common-law system, in which the declaration consisted of only a series of fictions, the tenant was not permitted to defend the action, except upon entering into the “consent rule,” whereby he consented to plead the general issue, and at the trial to admit his possession, and also the lease, entry, and ouster of the plaintiff, and to insist only on his title, so that the only matter which was tried by the court was an issue not presented by the pleadings or alleged in the declaration, viz., whether the plaintiff’s lessor had any title to the land. As these fictions have been abolished by the reform in pleading, and the pleader is required to state in ordinary and concise language the facts which constitute his cause of action, inasmuch as the withholding of the…