
    [L. A. No. 3930.
    Department One.
    June 25, 1917.]
    JOHN AGOURE, Respondent, v. E. R. PLUMMER et al., Appellants.
    Landlord and Tenant—Lease for Fixed Term — Termination for Failure to Pat Bent—Bight to Growing Crops.—A lease for a fixed term of years, with rent payable at stated times, which is terminated by the act of the lessee alone, in failing to pay the rent when due, does not create an estate that would entitle the lessee or his subtenant to claim the growing crops or emblements after such termination of the estate.
    
      Id.—Unlawful Detainer—Subtenant not in Actual Occupancy— Judgment Against Tenant Binding on Subtenant.—In an action of unlawful detainer, after default in the payment of rent, a judgment against the tenant for the rent due and restitution of the premises is binding on a subtenant, who was not in the actual occupation of the premises either at the time of the service of the three days demand for the payment of the rent, or at the time of the commencement of the action, and who was not made a party defendant therein.
    Id.—Subtenant not Entitled to Growing Crops.—The subtenant is not entitled to claim the growing crops or emblements after such termination of the leasehold estate, if neither he nor the original tenant satisfies the judgment within five days, as provided, by section 1174 of the Code of Civil Procedure, nor obtains relief from the forfeiture under section 1179.
    APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial. George E. Church, Judge.
    The facts are stated in the opinion of the court.
    Haas & Dunnigan, for Appellants.
    Frank P. Dougherty, and Kemper B. Campbell, for Respondent.
   SHAW, J.

This is an action in claim and delivery involving certain personal property, consisting of 175 tons of hay and 709 sacks of barley originally harvested from the lands of the defendants. The court below gave judgment that plaintiff was entitled to the possession of said property, from which judgment and from an order denying a motion for new trial the defendants appeal.

On August 31, 1907, defendants were, the owners of a tract of land designated as Lot B, containing 1,767 acres, of the Rancho Los, Vírgenes. On that date they entered into an agreement with one Pierre Agoure, uncle of plaintiff, whereby the land was leased to Pierre for a period of five years from November 1, 1907, at a rental of eight hundred dollars per annum, payable semi-annually in advance on the first day of April and November each year. In November, 1911, Pierre entered into an agreement with the plaintiff whereby the latter was to farm a portion of the land leased by Pierre, being one tract of ninety-five acres and one tract of sixty-five acres, the plaintiff to receive three-fourths and Pierre one-fourth of any crop harvested therefrom. The hay and barley in controversy were produced under this agreement. Plaintiff plowed a part of the two parcels in December, 1911, and the remainder in March, 1912. The sowing was completed on March 24, 1912. On April 25th, and for three days and a half afterward, he was harrowing one of the parcels. There was no proof of cultivation at any other time. There was no house on the land or on the 1,767 acres of which it formed a part. Plaintiff resided in Ventura County, two miles from the land. The parcels cultivated by plaintiff were not inclosed or in any way separated from the larger parcel. Plaintiff was not in actual possession or occupancy of the parcels, or any part thereof, except during the times aforesaid when he was plowing, sowing, and harvesting the same. The installment of rent due on April 1, 1912, from Pierre to the defendants was not paid. On April 5, 1912, defendants served on Pierre Agoure a notice to quit within three days for nonpayment of rent. The rent was not paid and thereupon the defendants on April 23, 1912, brought an action in unlawful detainer against Pierre. At the time the notice was served and from that time until the action was begun John Agoure was not at any time in actual occupancy of any part of the land. In that action the defendants here, plaintiffs there, recovered a judgment for six hundred and fifty dollars, being the amount of rent due and damages for withholding the property by Pierre, and on June 4, 1912, defendants were restored to the possession and occupancy of the land by a writ of restitution. The next day plaintiff entered upon the ninety-five acre tract, over the protest of the defendants, and cut and baled the 175 tons of hay here involved. Subsequently, defendants harvested the crop on the sixty-five acre tract, from which they realized the 709 sacks of barley here involved. All of said property remained in the possession of the defendants until claimed by the plaintiff in the course of this action.

Appellants contend that the judgment in the action of unlawful detainer against Pierre Agoure is effectually binding upon the plaintiff herein so as to preclude him from claiming any right or title to the crops growing upon said lands.

The respondent has filed no brief in this court and it is not apparent from the record upon what theory the court below gave its judgment, unless it be upon the theory that in the proceedings in unlawful detainer the present defendants having obtained a judgment for the full amount of the rent due to the end of the term for which the lease was to run and damages for the detention of the land, they were fully recompensed, and that in equity and good conscience the lessee and those claiming under him were entitled to the use and possession of the land for the remainder of the term, notwithstanding the judgment dispossessing Pierre and restoring the defendants to possession. The lease between Pierre and defendants being for a fixed term of years, with rent payable at stated times, and having been terminated by the act of Pierre alone, in failing to pay the rent when due, it did not create an estate that would entitle the tenant or subtenant to claim the growing crops or emblements' after such termination of the estate (Civ. Code, secs. 819, 820; Tiedeman on Real Property, sec. 59; 1 Washburn on Real Property, 6th ed., sec. 259), and it does not appear from the record that such a claim was made.

The action in unlawful detainer was carried to a successful conclusion by the defendants here (Plummer v. Agoure, 20 Cal. App. 319, [128 Pac. 1014]), and there was a due compliance with all the provisions of the Code of Civil Procedure relating to such action. Section 1161 defines unlawful detainer, subdivision 2 thereof providing that one is guilty of unlawful detainer who, in person or by subtenant, continues in possession, without permission of the landlord, after default in payment of rent and after three days’ notice in writing requiring its payment, or the possession of the property, shall have been served upon him, and “if there is a subtenant in actual occupation of the premises, also upon such subtenant.” The plaintiff in this action was, by his own testimony, not in the “actual occupation” of the premises, within the meaning of this statute. Subdivision 3 provides that .within three days after service of notice the tenant, or any subtenant, in actual occupation of the premises, may pay the rent and save the lease from forfeiture, of which opportunity for relief neither the plaintiff nor his lessor availed himself. By section 1164 “no person other than the tenant of the premises and subtenant, if there be one, in the actual occupation of the premises when the complaint is filed, need be made parties defendant,” so that plaintiff herein, not being in the actual occupation of the premises, was not a necessary party to that action. The judgment in that action was given May 1, 1912, in accordance with section 1174. At no time within five days after such judgment did the plaintiff herein or Pierre Agoure offer to pay into court for the landlord the amount of rent and damages and the costs of the proceeding, thereupon to be restored to the possession of the premises, as provided in said section.

Up to this point in the proceeding the plaintiff, as subtenant, is clearly bound by any judgment affecting Pierre Agoure. So far as any hardship may be deemed to have been visited upon plaintiff by the judgment both for the posses^ sion of the land and the rent due in full satisfaction of the terms of the lease, Pierre Agoure necessarily made the lease with full knowledge on his part of the provisions of our code with reference to one guilty of unlawful detainer because of nonpayment of rent, and plaintiff, as subtenant or as cropping contractor with Pierre, must be charged with equal knowledge that the term under which he contracted might be terminated at any time for such cause. To prevent any hardship upon just such persons as the plaintiff herein the law throws about him the protection not only of section 1174, under which the judgment was given and by which plaintiff herein could have paid the rent within five days after judgment and obtained possession of the land, but also of section 1179, wherein one so oppressed is afforded relief against such forfeiture, upon proper showing, if made within thirty days after judgment, which relief plaintiff did not see fit to claim. To allow the plaintiff to claim that which he did not avail himself of at the time the statute gave him the right to claim it, would be to defeat and set at naught the very object of the above provisions of the statute—the restoration of the landlord to the possession of the premises (Arnold v Krigbaum, 169 Cal. 143, [Ann. Cas. 1916D, 370, 146 Pac. 423]), with all rights to the use and occupation thereof, which would include the growing crops thereon, unless the lessee or those claiming under him see fit to obtain relief as provided in the statutes. It follows that the court erred in giving judgment for the plaintiff.

The judgment and order are reversed.

Victor E. Shaw, J., pro tem., and Sloss, J., concurred.

Hearing in Bank denied.  