v. Wood, 22 Or. 77.) The judgment restoring the plaintiffs and respondents to possession of the property was correct. (Code Civ. Proc., sec. 380; Polack v. Gurnee, 66 Cal. 266; Kitts v. Austin, 83 Cal. 167-72.) This is an action to quiet title under section 738 of the Code of Civil Procedure, and plaintiffs, under the complaint, had a right to prove a title acquired by adverse possession. (Arrington v. Liscom, 34 Cal. 370, 371; 94 Am. Dec. 722; Liebrand v. Otto, 56 Cal. 242-47; Tansman v. Faris, 59 Cal. 663; McCormack v. Silsby, 82 Cal. 72.)

TEMPLE, J.-Action brought to quiet title.

The answer denies plaintiffs' ownership and avers title in one of the defendants, John B. Cronan, under whom the other defendant holds.

Plaintiff recovered judgment, the court finding the allegations of the complaint true, and all the allegations of the answer untrue.

Plaintiffs' sole claim of title is from adverse posses

sion.

The lot in question is known as lot 2, and is one of many lots comprising about ten acres, which belonged at one time to the City Extension Homestead Association, and which, with other lands, were subdivided by the association prior to 1870.

Lot 2

Lot 2 was conveyed to John Tenney by the association prior to 1873, and the others to different owners. was one hundred feet square.

In November, 1873, Michael Millett entered into possession of the ten-acre tract and other lands under a lease for three years, executed by ten owners of lots in the tract, or in some portion of the lands formerly owned by the association, for the lease included other lands besides the ten-acre tract, which last-mentioned tract, however, was inclosed by itself.

The lessors did not claim undivided interests in the demised premises, but each owned the land which had been conveyed to him by the association. The lease was in writing, and purported to lease to Millett their

interest in the lands known as the City Extension Homestead Association. Millett remained in possession of the premises up to some time in 1891, when lot 2 was entered upon by defendant Lagomarsino, who claimed under defendant Cronan, who had obtained a deed for the lot from John Tenney.

For the first three years Millett paid rent as stipulated in his lease; after that he still retained possession, but paid no rent.

In July, 1882, Millett obtained a deed for the lot from one Jason Wight, who had purchased the property at a tax sale, although it does not appear that a tax deed was ever executed to him; Millett recorded this deed, and then-as plaintiff contends-commenced to assert title to the land and to hold the same adversely to all the world.

Appellants contend that as Millett entered into possession as a tenant, he cannot initiate an adverse possession without first surrendering possession to his landlord; and further, that, if he can do so, Tenney and his grantees should have some notice of the change in the manner in which Millett was holding before his possession could become adverse to Tenney, so as to set the statute of limitations in operation.

The rule that it is necessary to surrender possession and again enter, before the possession can become adverse, obtains only where the person claiming to hold adversely was put into possession by the owner, or has at least held possession under such owner. No such relation ever existed between Millett and Tenney.

The lease from McNear and others did not render Millett's possession of lot 2 less hostile to Tenney. Had Tenney sued Millett for trespass in entering upon it, the lease would have constituted no defense; on the contrary, if it is properly construed as including lot 2 and thereby authorizing Millett to enter into possession of it as tenant, it would have made the lessors joint trespassers with Millett. The only effect of the lease affecting this case was-conceding that it included lot 2-to

show that while Millett was occupying the premises under it he was not in possession, claiming to be the

owner.

As the relation of landlord and tenant never existed between Tenney or his grantees and Millett, section 326 of the Code of Civil Procedure has no application to this

case.

It was not contended that Millett acquired any title through the deed from Wight, but simply that it brought him within the provisions of section 323 of the Code of Civil Procedure. It seems sufficient for that purpose. (Packard v. Moss, 68 Cal. 123; Wilson v. Atkinson, 77 Cal. 485; 11 Am. St. Rep. 299.)

The possession of Millett was sufficient to establish an adverse holding under the statute, and there was no conflict in the evidence. As to Tenney, Millett had all the time been a trespasser, and his possession was sufficient notice of an adverse claim. There is some claim that McNear, when he made the lease as one of the lessors, was the agent for all who had owned lots in the homestead, and was acting for Tenney in making the lease. There is really no evidence which tends to show this, and the terms of the lease disprove the claim.

If the law be as announced in this opinion there is nothing whatever in the affidavits used on the hearing of the motion for a new trial. The evidence set out in them would not have tended to prove a defense.

The judgment and order are affirmed.

HARRISON, J., GAROUTTE, J., VAN FLEET, J., BEATTY, C. J., and HENSHAW, J., concurred.

[No. 15424. Department One.-April 6, 1895.]

J. N. KNOWLES, EXECUTOR, ETC., ET AL., RESPONDENTS, v. BRIDGET MURPHY ET AL., APPELLANTS.

UNLAWFUL DETAINER-PARTIES-ACTION BY EXECUTORS OF DECEASED LESSOR. The executors of a deceased lessor may bring an action of unlawful detainer against his lessees, who hold over after written demand for the payment of rent or for the delivery of possession of the demised premises.

SUCCESSORS то

ID.-ESTATES OF DECEASED PERSONS-EXECUTORS ESTATE OF LANDLORD-NOTICE TO TENANT.-While engaged in the administration of the estate of a deceased person, the executors are to be regarded as the successors in estate of the landlord, for the purpose of giving the notice authorized by section 1161 of the Code of Civil Procedure, and enforcing against the tenant who is guilty of an unlawful detainer the remedies authorized by that code.

ID. PLEADING-SURPLUSAGE.-Where the complaint in an action of unlawful detainer sufficiently states a cause of action, and sets forth the terms of the lease and the period during which the defendant had been in default in the payment of the rent prior to the date of the demand, and showing that the rent was payable in advance, the averment that the amount in default covered a period which extended beyond the date at which the demand was made, or beyond the date when the last installment accrued, is merely surplusage.

ID. MANNER OF SERVICE OF NOTICE-GENERAL DEMURRER-CONSTRUCTION OF PLEADING.-It is not necessary in a complaint for unlawful detainer to allege the manner in which the notice to pay the rent or to surrender possession was served, and, if the fact of the service is distinctly alleged, this allegation will be construed, as against a general demurrer, to include every thing necessary to constitute a sufficient service.

ID.-NONSUIT-SUFFICIENCY OF PROOF.-A nonsuit is properly denied, where the proof shows the execution of the lease and the default in the payment of the rent provided therein, and there is an admission in the answer that defendants held possession of the demised premises. ID.-PLEADING ADMISSION OF POSSESSION-CONSTRUCTION OF DENIAL -A denial of the defendants in their answer that they still continue to hold or occupy the premises, or any part thereof, as tenants, is an admission that they are in possession, and merely denies the tenancy. ID. TITLE NOT INVOLVED DEED INTENDED AS MORTGAGE ESTOPPEL OF TENANT. In an action of unlawful detainer against a lessee, the question of title is not involved; and the lessees cannot avoid the obligation assumed by reason of the lease, by showing that the lessors did not have the title to the premises demised to them. ID.-EFFECT OF POSSESSION AT TIME OF LEASE ESTOPPEL-QUESTION OF FRAUD.-The rule that a person in possession of premises at the time of entering into a lease is not estopped from disputing the title of the lessor does not apply in an action of unlawful detainer, except that

the tenant may show that he was induced to accept the lease by any fraud of the lessor which, if shown, would destroy the relation of landlord and tenant, and remove the estoppel.

ID.-EFFECT OF DEED AND LEASE AS SECURITY-RIGHTS OF LESSOR.-. Even if a deed and lease are both executed merely as security for the payment of indebtedness, the lessees are still subject to the obligations consequent upon entering into the lease, one of which is the right of the lessor to a judgment for possession in case of default of the lessee in payment of rent, and the lessor has the right to avail himelf of all the remedies afforded by law for making that security effèctive.

ID. OPTION TO PURCHASE-EFFECT OF TENDER-SPECIFIC PERFORMANCE OBLIGATION TO PAY RENT.-A tender made by virtue of an option clause in the lease, entitling the lessees to purchase the leased premises, does not release the lessees from their obligation to pay the rent, unless they have sought an enforcement of the agreement to sell on the part of the lessor.

ID. ABANDONMENT OF OPTION-SUBSEQUENT PAYMENT OF RENT.The subsequent payment of rent by the lessees must be regarded as an abandonment of the exercise of an option to purchase.

ID. OFFER OF PAYMENT OF INDEBTEDNESS-KEEPING TENDER GOOD.— An offer of payment of indebtedness, intended for the purpose of extinguishing the indebtedness, cannot have that effect unless the tender is kept good.

ID.-ISSUE OF FRAUD-INSTRUCTION AS TO EXECUTION OF LEASE-ADMISSION OF SIGNING.-Where the signing of the lease was admitted by the defendants in their answer, and their signatures to the instrument when it was offered in evidence were not disputed, and the issue before the jury was whether the signing was voluntary, or had been induced by fraud, an expression in the charge to the jury that the execution of the lease was admitted, could not have misled the jury where it appears that the issues as to the execution of the lease and as to whether there was any fraud practiced, were fairly and fully presented to the jury by the court.

ID. EVIDENCE OF PAYMENT OF RENT-PRESUMPTION.-Where the fact is undisputed that the lessees paid money to the lessor, and took receipts from him, in which the money was stated to have been paid as rent, such payments must be presumed to have been made under the lease.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial.

The facts are stated in the opinion of the court.

Sullivan & Sullivan, for Appellants.

The averment in the complaint as to the amount due for rent on March 3, 1892, shows that the demand for the full sum upon February 12, 1892, was prematurely