Mitchell v. Davis

Citations

• 20 Cal. 45

Syllabus

<p>In an action between S. and D., a writ of restitution issued, commanding the Sheriff to cause D. to be removed from certain premises, and S. to have restitution of the same. The return to the writ by the Sheriff shows that he “ put S-, by his representative M., in peaceable possession : ” Held, that the , possession under the writ was that of S. and not of M.; that M. was the mere agent of S.; and that the presumption of the continuance of this relation was not destroyed by proof of acts of control over the premises subsequently exercised by M. which were not inconsistent with his position as agent.</p> <p>After the service of the writ, and while the relation remained unchanged between S. and M., D. entered upon the premises, and an action under the Forcible Entry and Unlawful Detainer Statute was thereupon commenced by and in the name of M. against D.: Held, that M. could not maintain the action by reason of his want of possession.</p> <p>An agent or servant having the care of real estate cannot be considered as a tenant at will of his principal or master. The adoption of such a principle would lead to very inconvenient results, and would give to servants and agents novel and embarrassing powers over employers and their property.</p>