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the mortgagee. He may be deprived of the possession if it can be done peaceably or may be evicted in an action of ejectment. The mortgagor is not a tenant within the meaning of the unlawful detainer act, however. The conventional relation of landlord and tenant means the relation created by convention or agreement between the parties. The cases are numerous in which a summary remedy has been refused because the contract or circumstances under which the owner of premises permitted another to take possession of them contemplated some condition or consideration apart from rent or a tenancy at the mere sufferance or will of the owner.' This is the rule in California. (Wheelock v. Warschauer, 21 Cal. 309-316; Steinback v. Krone, 36 Cal. 303-309; Johnson v. Chely, 43 Cal. 299-305; Walls v. Preston, 28 Cal. 225; and Henderson v. Allen, 23 Cal. 519.) In order that such an action. may be maintained the conventional relation of landlord and tenant must be shown to exist. In other words, the action is limited to those cases in which the tenant is estopped to deny the landlord's title. And when a defendant in an action. which under our code is the equivalent of one in unlawful detainer proves the nonexistence of such relation, the plaintiff must fail. (Richmond v. Superior Court, 9 Cal. App. 63, 64, [98 Pac. 57].)

It follows that the superior court did not err in permitting defendant to prove the execution of the contracts of purchase. While the validity of titles may not be tried in proceedings of this character, evidences of title are admissible to show the character or extent of the possession claimed. (19 Cyc. 1165; Hoag v. Pierce, 28 Cal. 188; Shelby v. Houston, 38 Cal. 411; Dennis v. Wood, 48 Cal. 361.)

Appellant contends that since the contract did not in set terms give the defendant the right of possession of the property, its entry upon the premises was merely permissive and therefore that of a tenant at will. There is no merit in this argument, because the agreement between Mrs. Francis and the oil company clearly contemplated possession and occupancy of the land by the vendee. It was therein provided that the purchaser should not remove or cause to be removed any of the pipe or casing in any well drilled on the property, and that in the event of a forfeiture by the corporation of the right to purchase the land under the contract, the casings and derricks should revert to the vendor. By the terms of

the writing it was understood that it should not set aside or annul the contract between Mrs. Francis and Mr. Good except as specifically provided, but that the oil company should "hold and acquire said lands under said contract." In view of this language, and of the subsequent conduct of the parties to the contract, there can be no doubt that the immediate entry by the West Virginia Oil Company upon the land, and the development of oil thereon, were within the contemplation of the plaintiff and defendant. Courts have frequently held that by implication contracts have given the right to immediate possession by the vendees, even where no express provisions to that effect were contained in the writings. In Olson v. Minnesota & North Wisconsin R. R. Co., 89 Minn. 280, [94 N. W. 871], the vendee was obligated to pay all taxes and assessments, and in case of default buildings and improvements on the land were to revert to the vendor. It was held that the right to possession by the vendee was implied. A similar decision was made in Welch v. Hover & Co., 75 Wash. 130, [134 Pac. 526].

A vendee in possession is not a tenant in any sense of the word, and only a tenant may be sued under the first subdivision of section 1161. The proceeding is purely statutory and is restricted in its operation to those persons specified in the statute. (Martel v. Meehan, 63 Cal. 47-50; Ben Lomond Wine Co. v. Sladky, 141 Cal. 619-623, [75 Pac. 332].) Failure of performance of his part of the contract of sale by the vendee in possession does not make him a tenant. (Brown v. Beatty, 76 Ala. 250; Mason v. Delancy, 44 Ark. 444; Brown v. Persons, 48 Ga. 61; Griffith v. Collins, 116 Ga. 420, [42 S. E. 743]; Goldsberry v. Bishop, 63 Ky. 143; Young v. Ingle, 14 Mo. 426; Hauser v. Morrison, 146 N. C. 248, [59 S. E. 693].) The rule established by these and many other authorities is in accordance with justice. Even a vendee who has defaulted in his promised payments is entitled to an opportunity of showing his equities and presenting his defenses.

It is not necessary to comment upon any other contentions made by appellant, as they are substantially disposed of, we believe, in the foregoing discussion.

The judgment is affirmed.

Henshaw, J., and Lorigan, J., concurred.

[Crim. No. 2033. In Bank.-January 3, 1917.]

THE PEOPLE, Respondent, v. MAX ABRAMS, Appellant.

CRIMINAL LAW-ARSON IN FIRST DEGREE-PRESENCE OF THIRD PERSONS ESSENTIAL. To constitute arson of the first degree, as defined by section 454 of the Penal Code, the presence in the building at the time of its burning of some human being other than the perpetrators of the forbidden act is essential.

ID.-JOINT PARTICIPANTS IN BURNING-SEPARATE TRIAL OF ONE DEFENDANT.-A defendant jointly charged with another with the crime of arson, but separately tried, cannot be convicted of arson in the first degree, if the evidence shows that they were both participants in the burning and fails to show the presence of any other person in the building.

ID. TENANT OF BUILDING OWNED BY ANOTHER.-The tenant of a building owned by another and occupied solely by himself may be guilty of arson in burning the building.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial. Frederick W. IIouser, Judge.

The facts are stated in the opinion of the court.

Constantine M. Mooslin, and Ford & Hammon, for Appel

lant.

U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Respondent.

ANGELLOTTI, C. J.-This defendant and his wife were jointly charged by information with the crime of arson, in the willful, malicious, and felonious setting fire to and burning with intent to destroy a certain building, the property of another, occupied by them as tenants as a dwelling-house. In a second count of the same information they were charged with burning and destroying the same property with intent to defraud an insurer thereof. Separate trials were demanded and the trial of this defendant was had before his codefendant was put on trial. It does not appear that she has ever been tried. A verdict of not guilty was rendered as to the matters charged in the second count. As to the charge

of arson, the jury found the defendant guilty of arson in the first degree. Judgment of imprisonment in the state prison was thereupon pronounced. We have here an appeal from this judgment and from an order denying a motion for a new trial.

The appeal in this case was taken, as the constitution requires, to the district court of appeal of the second appellate district, and that court affirmed the judgment and order appealed from. A hearing in this court was ordered principally because we were not satisfied as to the correctness of the disposition by the learned district court of appeal of the claim that the evidence was insufficient to support the verdict finding this defendant guilty of arson in the first degree. Further consideration of that question has satisfied us that the evidence furnishes no support for any such verdict.

By our statute arson, which is the willful and malicious burning of a building, with intent to destroy it (Pen. Code, sec. 447), is divided into two degrees. Arson of the first degree, the more heinous offense, is defined as being the malicious burning "in the night-time an inhabited building in which there is at the time some human being." (Pen. Code, sec. 454.) The presence of "some human being" in the building at the time of the burning is therefore obviously essential to this particular offense. And it is just as clear that it must. be some human being other than the person or persons doing the forbidden act. It was so held in People v. Principe, 23 Cal. App. 729, [139 Pac. 658]. In the case at bar the evidence clearly shows that no human being was in the building other than the defendants jointly charged, the appellant here and his wife. They were tenants occupying the building as their dwelling, the building itself, as we have seen, belonging to another person. There is not a shred of evidence pointing to this defendant as being the person committing the alleged offense rather than his wife. In fact, the only conceivable theory, apart from mere conjecture or surmise, upon which it can be held that the evidence sufficiently supports a conclusion that he was a participant in the burning, is, in view of the evidence, that both he and his wife were joint participants. The evidence, which is entirely circumstantial, points no more strongly to him than it does to the wife. In fact, if there be any difference, it points more strongly toward the wife, for she was the sole owner of and carried insurance on the personal

property contained in the building, and the evidence points pretty clearly to the conclusion that if the fire was incendiary, the primary object was the destruction of this personal property with a view to obtaining the insurance money, and that if there was any destruction of the building intended (which appears not to have been accomplished to any substantial extent), it was entirely incidental to the accomplishment of this main object. Certain it is that if the evidence sufficiently supports a conclusion of this defendant's guilt, it shows to the same extent the guilt of the codefendant wife, and there is nothing therein to support a conclusion that the defendant being guilty, the wife nevertheless was a nonparticipant, and therefore one whose presence in the building would satisfy the requirements of section 454 of the Penal Code. The presumption of innocence available to her in any proceeding against her may not be successfully invoked, under the circumstances, against the husband. A verdict finding this defendant guilty of arson in the first degree involves, in view of the definition. of that offense, a finding by the jury of the guilt of the husband and the innocence of the wife of all participation in the crime, a result absolutely unwarranted by the evidence. It follows from what we have said that upon the record before us the presence of the wife in the building cannot be held to satisfy the requirements of section 454 of the Penal Code, and that the evidence utterly fails to show that there was any human being, within the meaning of that section, in the building at the time the fire was applied by this defendant, if it ever was applied by him. The verdict given against him is therefore contrary to the evidence. He was thereby found guilty of an offense as to which there was no evidence furnishing legal support for a conclusion of his guilt, and the conviction cannot be allowed to stand.

For the purposes of further proceedings in the event that they are concluded to be advisable, we deem it proper to notice one or two other matters.

The contention as to two different offenses being improperly charged in the information is no longer of any practical importance in view of the fact that defendant has been acquitted as to the matters embraced in the second count, and that subject matter is no longer in the case.

We find no substantial merit in the other objections raised by motion to set aside the information and by the demurrer

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