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 action was commenced September 1, 1893, and the court rendered its judgment February 3, 1894, awarding the plaintiff fifteen dollars for damages, “ estimated by the value of the rents and profits of said land during the detention and withholding from plaintiff by defendant.” As there was no issue upon the value of the rents and profits, the damage to the plaintiff was determined by a computation of this value during the withholding of the land by the defendant. The denial in the answer that the plaintiff had been damaged by such withholding made no issue of fact, in view of the admission regarding the value of the rents and profits, and was only the denial of a legal *98 conclusion. The complaint does not allege that the defendant had been in possession for any length of time prior to the commencement of the action, but the court was authorized to include in its judgment for damages the value of the rents and profits from the commencement of the action down to the time of rendering judgment. (Love v. Shartzer, 31 Cal. 487 .)

The order is affirmed.

Garoutte, J., and Van Fleet, J., concurred.

Hearing in Bank, denied.