
    BLONDET GAUDINAUT, Plff., v. JEREMIAH SMITH, JR., Dft.
    San Juan,
    Law,
    No. 1178.
    UNLAWFUL' DETAINEE (DESAHUCIO).
    Unlawful Detainer — Necessary Parties.
    1. In an action brought under the Act of March 9, 1905, establishing unlawful detainer proceedings, the person in material possession of the property must be made a party defendant.
    Payment for the Account of Another — § 1126 of the Civil Code — Burden of
    Proof.
    2. Under § 1126 of the Civil Code any person, with or without interest, may make payment for the account of another, but a plaintiff is not required to allege that no one has made payment, as this would be putting the burden on him of negativing the defense.
    Pleading — Complaint—-Ultimate Facts.
    3. It is a general rule of pleading that only the ultimate facts, and not evidentiary matters, may be set out in a complaint; but where it is 'attacked on the ground that it is uncertain, ambiguous, and unintelligible in that it does not set forth sufficient facts to enable the defendant to prepare his defense, it must be made more specific.
    Opinion filed June 2, 1917,
    
      Messrs. Francis & Soto for plaintiff.
    
      Mr. Chas. Hartzell for defendant.
   HamiltoN, Judge,

delivered tbe following opinion:

Tbis suit was brought in tbe local district court at Gruayama and removed to tbe Federal court. It comes up now upon a demurrer setting up several alleged defects in tbe complaint, which has been translated, but not rewritten.

Tbe demurrer admits tbe allegations of tbe complaint, and these are that tbe plaintiff owns tbe land in controversy and leased it in 1900 to De Ford & Company. Central Aguirre, who assigned the lease to tbe present defendant, Jeremiah Smith, Jr., on November 15, 1905. Tbe person actually in possession of tbe property is alleged to be one Charles L. Crebore, who is tbe sublessee (subarrendatario) of tbe defendant, Jeremiah Smith, Jr., under a sublease dated May 25, 1914, but elsewhere in tbe complaint Crebore is spoken of as an agent (agente) of tbe defendant Smith. Tbe complaint alleges that, although tbe payment was to be made annually in advance, tbe present defendant on September 28, 1916, failed to pay tbe lessor plaintiff tbe rental stipulated, and furthermore that tbe defendant and bis arrendatario, Charles L. Crebore, exploited tbe land by excavating sand, gravel, and rock, thereby injuring tbe property to an amount not less than $10,000. "Wherefore, tbe plaintiff asks judgment of unlawful detainer, and “directing tbe defendant to vacate tbe premises as well as any other person who in bis name may unlawfully detain said property as sublessee, agent, or in any other capacity,” together with costs, and with such other relief as may be proper.

Tbe demurrer raises in tbe first place the point that Cre-bore is a necessary party, being tbe person in possession. Tbe complaint admits that Crebore is in possession.

The rights of the lessor are provided in § 1472 of the Civil Code of Porto Pico, which reads as follows:

“The lessor may judicially dispossess the lessee for any of the following causes:
“1. TJpon the expiration of the conventional period or the one fixed for the duration of leases in §§ 1480 and 1484.
“2. Default in payment of the price agreed upon.
“3. Infraction of any of the conditions stipulated in the contract.
“4. When the lessee employs the thing leased in uses or services not stipulated, and which cause the same to be impaired, or when he does not comply, with regard to its use, with the provisions of number 2 of § 1458.”

This suit is brought not under the general provisions of the Civil Code or the Code of Civil Procedure, but directly under the Act of March 9, 1905, “establishing unlawful detainer proceedings (desahucio).” The suit is to be commenced by the owner or his representative, and under § 2 to run against “tenants, colonos, and other lessees of property ... or any other person who retains material possession thereof, or enjoys the same by sufferance without paying any rental or other consideration whatever.” Under § 5, “the summons shall be served upon the person who, in the defendant’s name, is in any way in charge of the property.” On the one hand Smith is tenant, but on the other he does not retain the material possession. The plaintiff contends that he knows only his tenant Smith, and that there has been no novation by which he recognizes the subtenancy of Crehore. Nevertheless the proceedings in unlawful de-tainer are against the person unlawfully detaining, and cannot be against anyone else, and the complaint itself speaks of Cre-bore as exploiting and injuring tbe property. If a suit be brought against a subtenant, it may be that be could bring in his landlord. Or it may be that a suit could be brought against a tenant to cancel bis lease when be has unlawfully parted with tbe possession; but a tenant can assign bis lease if there is no covenant contra. Berrecil v. Post, 22 P. R. R. 681. This would not be a suit of unlawful detainer, for ex bypotbesi be would not be tbe one unlawfully detaining the property. If tbe present suit is to prosper tbe person in possession, whether lawfully or unlawfully, must be a party defendant. He may be added under § 74 of the Code of Civil Procedure, which is as follows: “The court may determine any controversy between parties before it, when it can be done without prejudice to tbe rights of others, or by saving their rights; but when a complete determination of tbe controversy cannot be bad without the presence of other parties, the court must then order them to be brought in, and thereupon the party, directed by the court, must cause to be served a copy of the summons in the action and the order aforesaid, in like manner as provided for the service of the summons, upon each of the parties ordered to be brought in, who shall have ten days or such time as the court may order, after service, in which to appear and plead; and in case such party fail to appear and plead within the time aforesaid, the court may cause bis default to be entered and proceed as in other cases of default, or make such other order as tbe condition of the action and justice shall require; and when, in an action for tbe recovery of real or personal property, a person not a party to the action, but having an interest in tbe subject thereof, makes application to tbe court to be brought in by tbe proper amendment.”

Tbe demurrer therefore is sustained on the first ground.

Tbe demurrer relies upon § 1126 of tbe Civil Code, wbicb provides as follows: “Any person, whether be has an interest or not in tbe fulfilment of tbe obligation, and whether tbe debtor knows and approves it or is not aware thereof, can make tbe payment. Tbe person paying for tbe account of another may recover from the debtor what be may have paid, unless be has done it against bis express will. In such case be can only recover from tbe debtor in so far as tbe payment has been useful to him.”

And tbe demurrer sets up that therefore tbe complaint must negative tbe payment of rent by Crebore, inasmuch as be can pay tbe rent. Tbe section in question, however, seems to go much further, and allows any person, with or without interest, to make tbe payment. So that, if tbe contention is sound, there must be an allegation that no one has made tbe payment. This would seem to be going too far, as it would be putting tbe burden on tbe plaintiff of negativing tbe defense. This ground, therefore, cannot be sustained.

Tbe demurrer claims that the complaint is insufficient, uncertain, ambiguous, and unintelligible in that it does not set forth tbe facts making up> tbe alleged trespass or exploitation of tbe premises wbicb are claimed as a breach of tbe lease. Tbe property is alleged to consist of eight hundred cuerdas of land, and is therefore a large tract. Tbe defendant is entitled to some certainty in tbe allegations of such exploitation as to time, place, and circumstances. It might be that defendant could show that some of tbe injury complained of was by bis predecessor, De Ford & Company, Central Aguirre, if there was more particularity in tbe allegations. There might be other defenses wbicb could be made showing that tbe defendant bad not committed particular exploitations if tbe allegations were more specific. Tbe general rule of pleading is that evidentiary matters need not be set out, that all that are needed are tbe ultimate facts; but in human affairs facts must occur at a given time and place, and ultimate facts must be set out under these categories. Tbe demurrer is overruled as to tbe second ground, but is sustained as to the others.

It is so ordered.  