Fleckner

Ejectment. Appeal from an order denying defendant’s motion for a new trial.

1. The complaint alleges that the plaintiff is seised in fee simple of the demanded premises, and that the defendant is in the unlawful and wrongful possession thereof, and wrongfully withholds the possession from the plaintiff The defendant does not deny the seisin of the plaintiff or the possession by "himself, but denies that his possession and withholding is wrongful or unlawful. Upon these admissions the court correctly found as a conclusion of law that the plaintiff is entitled to recover the possession of the land from the defendant. (Payne v. Treadwell, 16 Cal. 220 .) If the defendant would claim the right to retain the possession this is an affirmative defense which it was incumbent upon him to establish. (Payne v. Treadwell, supra.) As it appears from the record that he did not offer any evidence at the trial, the failure of the court to make a finding upon the character of his possession does not constitute error. (Winslow v. Gohransen, 88 Cal. 450 .)

2. The allegation in the complaint that the rents and profits of the land are of the value of thirty-six dollars per year is not denied. The…