
    Preston, Plaintiff and Appellant, v. Luyando, Defendant and Appellee.
    Appeal from the District Court of Humacao in an Action of Unlawful Detainer.
    No. 2536.
    Decided January 12, 1923.
    Unlawful Detainer — Contract—Attorney in Pact. — The evidence examined in this ease showed that the defendant was occupying the property involved by virtue of a1 contract whose nature can not he properly determined in an action of unlawful detainer; that the said contract was entered into by him with the former owner of the property and was ratified by the latter’s widow after his death, and that while the widow was away from the Island this action was brought by her attorney in fact who did not show that he had been specially instructed to act. Held: That the district court aeted correctly in dismissing the complaint.
    The facts are stated in the opinion.
    
      Mr. F. González for the appellant.
    
      Mr. F. Gervoni for the appellee.
   Me. Chieb Justice Del Tobo

delivered the opinion of the court.

This is an action of unlawful detainer. It is alleged in the complaint that the plaintiff is the owner of a farm property of 22 acres in the ward of Rio Blanco of Naguabo with her title recorded in the registry; that the defendant is in possession of “about 2 acres, more or less,” of that property without paying any rent, and that demand was made upon him to vacate the said piece of land and he refused to comply.

The defendant pleaded that the complaint did not state facts sufficient to ■ constitute a cause of action, denied generally and specially each and all of the allegations of the complaint and alleged the following as new matter:

“That the defendant is informed and believes that the plaintiff, Florence E. Preston, who is at present residing in the United States, has no knowledge of this action and that it has been brought in her name by Carlos Maymi, her agent, without her authorization or consent.
“And he further alleges that for seven years the defendant has lived on and fanned a property belonging to the plaintiff, but not the property described in the complaint, at the request and with the consent of the plaintiff and of her predecessor in title, Gustavo Preston. Under this arrangement the defendant has built thereon his own dwelling-house and has planted one acre of coffee, two acres of malangas, half of an acre of potatoes, fourth of an acre of yautias, half of an acre of cassava and 100 gandule trees, the value of all of which is $600. This farming has been and is being done by the defendant without opposition or objection by any person.”

The plaintiff moved to strike out the “new matter” and it was so ordered by the court, the defendant taking an exception.

The evidence examined consisted of a certificate issued by the Registrar of Property of Plumacao to the effect that the property of 22 acres described in the complaint is recorded in the name of the plaintiff, and of the testimony-of two witnesses, as follows:

“The plaintiff called Carlos Maymi Salgado who was sworn and on examination by the plaintiff’s attorney testified as follows: That his name is Carlos Maymi Salgado and he is the manager for the wicloiv of Mr. Preston and knows the property called Florida which consists of three different parcels, as follows: The large property of 478 acres, another called Cercado of 32 acres and another smaller property of 22 acres which is occupied by the defendant and is on the Hicaco River, bounded on the east by the Iiicaco River; on the south and west by property of one Hernández and lands belonging to the heirs of Borges, and on the north by property of the Rogers; that this property of the Rogers formerly belonged to the Countess of G-alves; that the defendant and his son-in-law live on the 22 acres without paying any rent, and that the witness notified the defendant that he should vacate the property three months before and he had not done so.
“Cross-examined by the defendant’s attorney, the witness testified as follows: That three m’onths before he had demanded of Lu'yando that he vacate the property; that for six or eight months he has been manager and before that he was overseer for a year, and as overseer and manager he has been on the property for nearly two years; that when he first took charge of the property as overseer Luyando already lived there; that he does not know who put him there or u'hether or not he lived there, hut Luyando himself and. other persons have informed him that he has heen there seven years and he does not know why he lives there; that Luyando has a coffee patch worth about $40 or $50 and also some banana plants; that the house in which Luyando lives belongs to the property and he occupies only a part of it, that when the witness took charge of the property Luyando was living in a small house lielonging to the property which he tore down in order to build the new house in which lie now lives; that as manager of the property he has authority to do anything as the representative of Mrs. Preston except to sell the property; that he has not the power of attorney with him, but can assert that he has it in his safe and did not bring it because he thought it was not necessary and, besides, his attorney did not advise him to bring it; that when he took charge of the property the former manager was Mr. La-vergne and when Luyando came there and began to pull down the house in order to build a new one Lavergne was ill and sent for Luyando and said to him that he did not authorize the substitution; that he knows that the former manager wanted to oust Luyando from the property, but the witness advised him not to do so; that Mrs. Preston did not recommend Luyando to the witness, for after the witness had recommended him to Lavergne it was unnecessary for her to recommend him to the witness; that Lavergne wanted to oust him, but the witness pitied him because he was old and poor and recommended him favorably to Mrs. Preston, and after-wards the witness was left as manager.
“The plaintiff having rested, the defendant called Ramón Lu-yando who, after being sworn, was examined by his attorney and testified as follows: That his name is Ramón Luyando; that he lives in Río Blanco Arriba of Naguabo on the property of Gustavo Preston, which now belongs to Mrs. Florence Preston; that he has lived there for about seven years; that he formerly lived on his own property in Maizales and has teen in the service of Gustavo Preston for about 21 years; that that property used to belong to Pablo Maldonado; that he went to live on that properly because Mr. Preston put him in possession of it, telling him to come there and sell the parcel of land which he owned, because the witness had done him great services and he wanted to have him near in case he needed him; that there was an old house which was in a ruinous condition and one day Mr. Preston asked him whether he was satisfied and he replied that he was not because the house was falling to pieces and he had been waiting for his permission to build another house, because be had two houses on his property and he had sold one and moved the other with more lumber that he had purchased in order to build, for he could build a good house if he would sell to him a small piece of land, and thereupon HJr. Preston replied: ‘I trill not sell it, but I will give it to you so that you muy plant and cultivate anything you like so that when you become old and can not earn wages you 'may have something to live on;’ that Mr. Preston died and the widow knew that the witness lived there, because she came there and sent for him and asked him if he was Ramón Luyando, and when he answered in the affirmative she said that as he had been with her husband a long time, he had advised her to treat him well, and then she sent for Maymi a^id told him to be careful because this ivas a man whom Mr. Preston greatly liked. That this occurred in his presence and she told Maymi to tell it to him in Spanish so that he could'know what she was saying; that he replied to what she said; that what she said was to treat Irim well and give him such work as he could do, for he was an old man, and to care for him well; that they left him there and nobod/y had a right to bother him; that the witness has no other place in which to live and no house except the one that he built on the .property; that he has nothing but the growing crops. On cross-examination by the plaintiff’s attorney he testified that he lived on that property with the consent of Mr. and Mrs. Preston; that he pays nothing for staying there; that his only work is to inspect the boundary lines, and formerly he also had in his charge some 16 or 20 head of cattle of which he took care, without being paid for it; that since they took away the cattle be pays no rent, but works on the plantation.” (Italics volunteered.)

The court rendered judgment dismissing the complaint and thereupon the plaintiff took the present appeal.

The grounds on which the district court based its judgment do not appear from the record. The appellee filed no brief and did not appear at the hearing on the appeal. We have heard only the appellant, who alleges “that the court erred in dismissing the complaint because the judgment is contrary to the evidence.”

In our opinion the court erred in striking out the “new matter,” but the error is unimportant, inasmuch as the defendant was permitted to introduce evidence at the' trial in support of the allegations therein contained.

This case is worthy of careful examination. In the complaint it was alleged that the defendant was occupying 'only two acres of land of a property of 22 acres without describing the two acres. The evidence tended _to show that the defendant was in possession of the whole property of 22 acres; but this detail is not of decisive importance.

We agree with the appellant that the evidence showed that the property belonged to Florence F. Preston and that the defendant has no dominion title to the land which ho is occupying, whether 2 or 22 acres. This is not, therefore, a case involving a conflict of titles. The defendant is a mere possessor, but he alleged and proved, in our opinion, that he came into and is holding such possession by virtue of a contract entered into by him with the former owner of the property and ratified later by his wife, Mrs. Florence E. Preston, the nature of which, considering the circumstances which we shall forthwith discuss, can not be properly determined in this action of unlawful detainer.

According to section 1 of the Unlawful Detainer Act, the action may be brought by the “owners 'of property, usufrue-tuaries thereof, or by any other person or persons entitled to the enjoyment of such property, or by persons claiming under them.”

The beginning’ of the complaint is as follows: "Now comes the plaintiff, by her attorney * * *, ” and the person named as plaintiff is really the owner of the property. But the evidence showed that Mrs. Preston did not personally authorize this action. It was brought by her self-styled manager Maymi. He testified that he was authorized to do anything in relation to the property of his principal except to sell it. This may be true, but as the evidence showed a very personal relationship between the defendant and the former and present owners of the property, the testimony of Maymi should have been based on some special instructions at least.

During the discussion of this case it was maintained that the conclusion which we have reached is against • the well established principles governing the relations. between attorney and client, inasmuch as the language of the complaint creates the' presumption that Mrs. Preston, the owner of 'the property, directly authorized the attorney. We do' not agree. The well established principles obtain. The attorney acted correctly. He followed the instructions of the manager, considering him to have sufficient authority, and drafted the complaint properly. But the evidence, which was admitted without objection, brought to light that the power exercised by the manager was, to say the least, doubtful, considering the very special circumstances of the case, and this being so, the trial court was justified in acting as it did under all of the facts of the case.

The judgment appealed from must be

Affirmed.

Justices Hutchison and Franco Soto concurred.

Justices Wolf and Aldrey dissented.

' DISSENTING. OPINION OP

MR. JUSTICE WOLE,

IN WHICH MR. JUSTICE AUDREY CONCURS.

The probability is that the court below-thought there was a conflict of titles or something akin thereto and hence erroneously, to my way of thinking, Defused to render judgment. There is no opinion. This court holds that there was a contract shown between the predecessor in title of the complainant and the defendant, but the majority opinion does not even attempt to say what kind of a contract it was or its term, if it had one. Ordinarily, in regard to land, there are leases or licenses or something else carved out of or less than a full title. To say that the defendant holds under a contract is merely to state the conclusion of some undefined premises. More positively, I should say, that the title of the complainant being admitted, the defendant was bound to show that he had a right to the possession, and for that he needed something more than the vague supposed promises of a man who was dead and could not testify, and a supposed ratification. If leases could be proved in this indefinite fashion the 'unlawful detainer act would probably soon be a dead letter.

The court below eliminated^ the defense sought to be set up, namely, that the attorney who appeared had no due authority to represent the complainant. Hence it was not properly before this court, especially as defendant did not appeal.

To my mind, the majority opinion necessarily decides that without an issue to. that effect the right of counsel to represent his client may be challenged by appellee on appeal. The authorities show that the proper way to attack the right of counsel to represent his client is by motion, or the like, made before the trial. 6 C. J. 635.

It was true that the attorney in fact of complainant said something to the effect that he, and not complainant, authorized the appearance of counsel, bnt the statement of the witness in response to no issue in the case was not binding on counsel. The attorney in fact, however, declared that he had due authorization to employ counsel. The presumption would be that when counsel appeared he had obtained direct authorization. 6 C. J. 631. Mrs. Preston may have communicated directly or authorized her agent to employ counsel. All these matters fall within the important presumption that when counsel appears he acts with due authority. It takes a special notice to challenge the authority of the attorney.

There was no due challenge in the court below of the authority of the attorney, and that authority could not, in my opinion, properly be questioned in this court. 6 C. J. 635, note 10.

For these reasons I dissent.  