
    No. 9215.
    Booth, et al. v. Sellers.
    
      Evidence — Burden of Proof. Action for the unlawful detention of land. Plaintiff produced a lease from the owner. Defendant relying upon a lease executed by one claiming to be the agent of such owner has the burden of establishing the agency.
    
      Error to Alamosa, District Court, Hon. Jesse C. Wiley, Judge.
    
    
      Department One.
    
    Mr. James D. Pilcher, Mr. George M. Corlett, Mr. James P. Veerkamp, for plaintiffs in error.
    Mr. Albert L. Moses, for defendant in error.
   Opinion by

Mr. Justice Teller.

Defendant in error was given a judgment of possession-in an action for the unlawful detention of real estate which he claimed under a lease from one Swetland, the owner thereof; plaintiff in error Kohler having possession of the same under a lease which was made by plaintiff in error Jesse Booth under an alleged agency from Swetland.

Error is assigned on the overruling of a demurrer to the complaint,'the ground of demurrer being that no demand for possession was pleaded.

There was no error in said ruling. Paragraph three of the complaint alleges that demand had been made upon each of the defendants.

The only other question' argued is that Booth was the agent of Swetland; that he acted as such agent in leasing the premises to Kohler; and that the court erred in finding to the contrary.

The case was tried without a jury, and a mass of correspondence between Booth and Swetland was put in evidence. There was oral evidence also supposed to bear upon this question.

As against the plaintiff claiming under a written lease from the owner, the burden was upon defendant Kohler to establish his right to possession by showing that Booth was the agent of Swetland. This he wholly failed to do, and the finding by the trial court was the only finding which could properly have been made.

The judgment is affirmed.

Chief Justice Garrigues and Mr. Justice Burke concur.  