
    JOANNA WHEELOCK v. WILLIAM WARSCHAUER.
    Determination of Tenancy.—An eviction of the tenant "by title paramount determines the tenancy.
    Estoppel upon Landlord.—If the tenant is sued in ejectment, and the title of the landlord is set up in defense, and the landlord appears and defends the action in the name of the tenant, and the tenant is evicted, the landlord is estopped from afterwards saying, in an action between him and the tenant, that the tenant was not evicted by paramount title.
    Evidence of Termination of Tenancy.—If the tenant is evicted by paramount title, in an action in which the landlord defends in the tenant’s name, and the landlord afterwards sues the tenant, the judgment and proceedings on the writ in the action in which the tenant was evicted are competent evidence for the tenant to show a termination of the tenancy.
    Entry of Tenant as Lessee of Evictor.—If the tenant is evicted by a stranger under title paramount, and then enters as a tenant of the evictor, the last entry does not have the effect of re-establishing the tenancy that had been destroyed by the eviction.
    Action against Tenant for Holding Over.—If the tenant is evicted by title paramount, and the landlord defends the action, and after the eviction appeals, the taking of the appeal does not restore the relation of landlord and tenant, which had been destroyed by the eviction, so as to enable the landlord to commence an action against the tenant for holding over, if such action is commenced before a reversal of the judgment.
    
      Appeal from the County Court, City and County of San Francisco.
    In 1859 Dutton sued Warschauer in ejectment to recover possession of a lot in the City of San Francisco. At the time the action was commenced, Warschauer was in possession of the lot as the tenant of Joanna Wheelock, the plaintiff herein. On the 18th day of May, 1861, Dutton recovered judgment for possession of the lot, and on the same day a writ of possession was placed in the Sheriff’s hands, who removed Warschauer and placed Dutton in possession, and Warschauer on the same day again entered into possession as the tenant of Dutton. After this entry of Warschauer as Dutton’s tenant, Wheelock appealed to the Supreme Court from the judgment in Dutton v. Warschauer. From the time of the entry of the latter as the tenant of Dutton he refused to attorn to Wheelock; and on the 10th day of June, 1861, Wheelock commenced this action, under the Act concerning forcible entries and unlawful detainers, to remove Warschauer. Afterwards, and on the 12th day of May, 1862, the Supreme Court reversed the judgment from which an appeal had been taken, and remanded the action for a new trial. On the 10th day of August, 1863, the action was dismissed by a stipulation. This case was tried and judgment rendered in 1865. The plaintiff appealed from the judgment of the County Court.
    The other facts are stated in the opinion of the Court.
    
      C. JET. Parker, for Appellant.
    
      Dutton v. Warschauer had been reversed and the action dismissed by stipulation, before this case was tried. In O’ Connor v. Blake, 29 Cal. 312, this Court held that a former judgment was no bar, because the parties were not the same, and that a former Us pendens was available only when the plaintiff, at least, in both actions, was the same. The defendant must claim, in order to make the judgment a bar in this case, that the plaintiff here “ is the same person ”— that is, that she was really the defendant in the action pleaded in bar, and the plaintiff here ; and the fact is, that she was a party to the record as defendant. (See Dutton v. Warschauer, 21 Cal. 609.) If defendant does not so claim, of course a new trial must be granted. By looking at the answer of the defendant, it will be seen that defendant sets up in bar the judgment of Dutton v. Warschauer. The stipulated facts show that the judgment had been reversed and the action dismissed, and the case cited from Lord Raymond establishes by law that “ if a man pleads a recovery by judgment in bar of an action, and the void judgment is reversed, after the pleading of the plea, now the plea is ill, because now it is no such record ab initio.” That authority is decisive of this case. If there is no record ab initio, then the defendant might as well insist upon offering a roll of blank paper in bar. The judgment becomes wholly unavailing for any purpose.
    [No brief on file for Respondent.]
   By the Court, Rhodes, J.:

Button sued Warschauer in ejectment to recover the possession of the premises in controversy, and obtained judgment in the District Court, and, under the writ of restitution, Warschauer was expelled and Dutton was placed in possession. At the commencement of the action, and at the rendition of the judgment, Warschauer was the tenant, from month to month, of Mrs. Wheelock, the present plaintiff, and she having been notified by her tenant of the pendency of the action, defended the same in the name of the tenant; and after the execution of the writ of restitution she took an appeal in the name of her tenant to this Court, where the judgment was reversed and the cause was remanded for a new trial. The action was subsequently dismissed by stipulation. Immediately after the execution of the writ of restitution Warschauer took a lease of the premises from Dutton and entered into possession, and so remained at the commencement of this action, and until the 19th of February, 1863, when he quit the possession. This action was commenced under section thirteen of the Forcible Entry and Unlawful Detainer Act of 1850, to recover the possession of the premises with damages, etc., on the ground that the defendant withheld the possession after a notice to quit and a demand of the possession. Judgment was rendered for the plaintiff in the Justice’s Court, and on appeal to the County Court the defendant had judgment. This action was commenced before the reversal of the judgment in the other action mentioned.

The only question in the case is the one passéd on by the County Court in denying the motion for a new trial, which is, whether the eviction under the writ in the case of Dutton v. Warschauer terminated the relation of landlord and tenant between the present plaintiff and defendant.

An eviction of the tenant by title, paramount to that of the landlord, must of necessity determine the tenancy; and when the title of the landlord is set up in defense to the action and the landlord appears and defends at the request of the tenant, and in his name, he cannot be heard to say, in a contest with the tenant, that the tenant was not evicted by paramount title. In the action of Dutton v. Warschauer the defendant set up and relied on the title of his landlord, and she appeared and defended the action; and judgment having been rendered for Dutton, and under the writ issued thereupon, the tenant having been turned out of possession, the subsisting tenancy was destroyed. The judgment and the proceedings on the writ were competent Evidence to show the termination of the tenancy, and the defense having been made for the benefit of the landlord, as was held by this Court in passing upon the appeal in that case, (See 21 Cal. 609,) the burden was not on the tenant to prove, except by the production of the judgment, that Dutton’s title was paramount to that under which the tenant held. When the tenant was expelled under the. writ, the judgment was in full force (no appeal having then been taken); and under their operations, as we have said, the tenancy was terminated. This proposition would not be doubted if no appeal had been taken from the judgment.

Did the appeal have the effect of reviving the tenancy ? The utmost that can be claimed for the appeal is that it suspended all further proceedings upon the judgment, and not that it set aside the writ after it had been executed and restored the parties to their original position.

The entry of the defendant as Dutton’s tenant, being in hostility to the plaintiff’s claim of title, did not have the effect to revive or re-establish the tenancy that had just been destroyed.

The plaintiff is not in a position to claim that upon the reversal of the judgment the parties were entitled to be restored to their original position, because the judgment of reversal had not been rendered when this action was commenced.

The question is not whether the plaintiff has a right of action in ejectment, but it is, as stated by the County Court, whether the relation of landlord and tenant existed between the parties at the time the action was brought; and we hold with the learned Judge of that Court, that the execution of the writ severed that relation.

Judgment affirmed.

Neither Mr. Justice Shaeter nor Mr. Justice Sanderson expressed an opinion.  