a building situated in the city of Sacramento and belonging to defendant. Plaintiff had been for two years conducting successfully a lodging house in the part of the building so occupied. The owner of the adjacent property, the Folsom Investment Company, began excavating on its land, and finding it necessary to dig lower than the foundations of defendant's building, gave written notice to defendant of the general nature of the excavations, but defendant failed to do anything by way of providing lateral support for his building. Despite the exercise of reasonable care by the owner of the adjoining land in making the excavation and without negligence or fault on plaintiff's part, the building collapsed, thereby seriously injuring plaintiff, destroying the furniture in her lodging house, causing her in her flight to leave behind $100 worth of other personal property, and breaking up her business. The facts pleaded and the relief asked are the same in each count. The first count is upon defendant's alleged negligence in failing to shore up or otherwise protect his building; in the second it is alleged that by such failure he created and maintained a nuisance; and in the third it is averred that by reason of defendant's negligence plaintiff was deprived of the possession and enjoyment of the premises which had been leased to her. Plaintiff's counsel in his brief insists that the landlord is liable to his tenant under the circumstances alleged, (1) for disturbing the tenant's rights in violation of the implied covenant for quiet enjoyment; (2) for permitting a nuisance on the premises; (3) for breach of his general duty to the public to refrain from negligent conduct; and (4) for violation of his special duty not to injure any one properly on his real property.

Appellant's counsel concedes that the case of Brewster v. De Fremery, 33 Cal. 344, is directly adverse to his views, but seeks to differentiate that case from this one because the former was decided before the code prescribed notice by the owner of adjacent property of his intention to excavate and because, as he insists, the opinion in that case was not devoted to a consideration of the duty of a landlord to refrain from disturbing the tenant's quiet enjoyment of the premises, or to other duties of such landlord as an owner of real property or as a member of the community in general.

Brewster v. De Fremery was in all of its essentials exactly like the case at bar. The plaintiff's decedent had been killed by the collapse of a building of which he was tenant from month to month. No covenants to keep the premises in repair or in habitable condition were averred, and for the purposes of the decision the court assumed that there were none. The house fell because of an excavation on the adjacent land. Defendants had timely notice of the excavation, which they ignored. A demurrer to a complaint which pleaded these facts was sustained. The court said in the course of the opinion:

"The house did not fall in consequence of any act of the owners, but in consequence of the acts of parties owning the adjoining lot, in excavating it for purposes of their own, after the deceased entered into the possession of the demised premises

under the lease. There was no covenant on the part of the lessors, the defendants, to uphold or keep the premises in repair, or in a habitable condition. Without an express covenant to that effect, they were not bound to repair, or to keep the premises in a habitable condition. We think the rule correctly stated in Howard v. Doolittle, 3 Duer 464. In that case it was held that a landlord is in no case bound to repair, unless by force of an express covenant or contract, and that, even when a building is let for a special purpose, and its use and occupation for any other is, in terms, prohibited, there is no implied contract or warranty on the part of the landlord that the building shall be, or continue, fit for the purpose for which it was demised. . . Aside from the relation of landlord and tenant there is no ground, under the circumstances alleged, for holding defendants responsible. The injuries resulted from the occupancy of the premises by the deceased as a tenant. The landlord was under no obligation to uphold or repair, and there was no breach of duty on his part. The cases cited in relation to nuisances have no application."

[1] We see no reason for departing from the doctrine of Brewster v. De Fremery, unless the duty of the landlord has been changed by section 832 of the Civil Code, which was adopted after the decision of that case. That authority has been cited with approval, particularly on the ruling that the only consequence of a breach of a landlord's obligation to repair is that the tenant may either vacate the premises or expend one month's rent towards repairs after ineffectual notice to the lessor to make such repairs. (Sieber v. Blanc, 76 Cal. 174; Gately v. Campbell, 124 Cal. 523.) And the same principle has been announced in such cases as Marony v. Hellings, 110 Cal. 220; Van Every v. Ogg, 59 Cal. 565; Green v. Redding, 92 Cal. 550; Callahan v. Loughran, 102 Cal. 480. And it has been held that in the absence from the lease of a covenant obliging the landlord to make repairs and keep the premises in habitable condition he is not liable for injuries to the tenant or others, resulting from defects in the leased property. (Willson v. Treadwell, 81 Cal. 58; Daly v. Quick, 99 Cal. 180.)

Appellant, while admitting the force of these decisions, insists that since the adoption of section 832, Civil Code, the notice prescribed by that section creates a duty upon the part of the landlord, to safeguard his building from possible collapse and that he owes such duty, if not to the owner of the adjacent land, at least to others. But since the adoption of that section the rights and duties of proprietors of adjoining property are substantially the same as they were before. (Aston v. Nolan, 63 Cal. 274.) In First National Bank v. Villegra, 92 Cal. 98, it was held that the excavating owner, after giving notice, could not collect any compensation for protecting his neighbor's property. It was there held that the purpose of section 832 in its broadest scope was to enable the excavator to relieve himself from liability, not to create any liability in his favor against his neighbor. In Conboy v. Dickinson, 92 Cal. 604, the court quoted from the opinion in Aston v. Nolan, supra, to the effect that section 832, Civil

(See

Code, had not materially changed the common law rule. also Sullivan v. Zeiner, 98 Cal. 348.) [2] There is nothing in the section considered which casts any duty upon the owner of a building with reference to his tenants, when the proprietor of adjoining property begins to excavate for building purposes. If the tenant, seeing the imminent danger from the excavation decided to remain and run the risk of injury, just as the landlord decided to run the risk of destruction to his property, he may not complain, under the circumstances here disclosed, because the owner of the building failed to do something which he was not required to do either by the statute or by his contract with his tenant.

[3] Plaintiff's contention that defendant was liable for the maintenance of a nuisance is also fully answered by Brewster v. De Fremery. The same point was made in that case and decided adversely to the appellant there. Indeed, as all of the obligations between the parties arose from the relation of landlord and tenant there is no force in any of appellant's contentions with reference to the defendant's alleged breach of duty to the general public or to one properly on his premises. [4] The implied covenant for quiet possession is measured by the obligation of the landlord towards the tenant under the lease. If not compelled by the lease or the statute to reinforce the wall of his building, no implied covenant for quiet enjoyment could compel him to do so any more than he could be compelled to sue to enforce the removal of a powder factory which might be established near the property. In this behalf appellant says that the landlord owes to his tenant a duty beyond and in addition to the duty of repairing dilapidations-a duty which arises out of the implied covenant for quiet enjoyment. He asserts that the landlord, for example, could not be held guiltless if he should deliberately throw rocks at his tenants or should negligently allow rocks to be rolled down upon them. The illustration is not apt. The injury of which this tenant complains was not due to any act on the part of the landlord, but was due entirely to the excavation on the adjoining property. Appellant cites Jessen v. Sweigert, 66 Cal. 182, in support of his theory. In that case a person passing on the street was injured by the falling of an awning which the owner of the property had suspended over the sidewalk by license from the city expressed in an ordinance allowing such awnings so to be located if securely placed and maintained. It was held that the landlord's duty to the public was not altered by the fact that a tenant was in possession of the premises under a lease. There was no question of quiet enjoyment by a tenant in that case at all, nor indeed anything involving a dispute between lessor and lessee. Another inapt citation is Milheim v. Baxter, 46 Colo. 157, a case in which a landlord was held guilty of disturbing his tenant's quiet possession by renting for immoral purposes premises owned by him adjacent to those occupied by the complaining tenant. Obviously that authority can have no application to the case at bar. Blauth had no control over the premises adjoining the land on which his building stood. He was not guilty of

creating the peril to his own property. It is a general rule that an express or implied covenant for quiet possession secures the lessee against acts or hindrances of the lessor and persons deriving their title through him, or from a paramount title, but not from the acts of strangers. (24 Cyc. 1059; Branger v. Manciet, 30 Cal. 627; Playter v. Cunningham, 21 Cal. 233; McCormick v. Marcy, 165 Cal. 389.)

It follows from the foregoing discussion that the complaint does not state a cause of action and that the demurrer was properly sustained.

The judgment is affirmed.

We concur:

LORIGAN, J.

HENSHAW, J.

MELVIN, J.

Sac. No. 2173. Department Two. March 31, 1915. ALICE AMELIA EARHART et al., Plaintiffs and Appellants, v. CHURCHILL COMPANY (a Corporation) et al., Defendants and Respondents.

[1] TRUST-ACTION TO ESTABLISH-REAL PROPERTY BELONGING TO ESTATE FRAUDULENT SALE BY ADMINISTRATOR-STATUTE OF LIMITATIONS. An action to establish a trust in real property brought by certain children of the estate of a deceased person which is based upon the asserted fraud of the administrator in conducting the sale of such property in the matter of the estate, is barred by the statute of limitations, where the sale took place more than fourteen years before the commencement of the action and the deed from the purchaser to the administrator had been of record more than thirteen years prior to the commencement of the action, and there is no allegation that the plaintiffs were not at all times fully aware of such facts, notwithstanding that such administrator was also the guardian of the plaintiffs and that he had never been discharged from such office.

[2] ID. PLEADING FRAUD-STATUTE OF LIMITATIONS.-When a complaint fails to state the time of the discovery of a fraud committed more than three years before the commencement of the action a demurrer based upon the statute of limitations will lie.

[3] ID. INVOLUNTARY TRUST-RUNNING OF STATUTE OF LIMITATIONS-REPUDIATION NOT ESSENTIAL. A trustee of an involuntary trust need not repudiate it in order that the statute should begin to run.

Appeal from the Superior Court of Siskiyou County-James F. Lodge, Judge.

For Appellants-Jacob F. Wetzel; W. H. Carlin, of Counsel. For Respondents-James R. Tapscott, James F. Farraher.

On May 29, 1909, a complaint was filed in which the plaintiffs attempted to allege two causes of action, one to quiet title to certain property in Siskiyou county, and the other based upon the asserted fraud of one Jerome Churchill as one of the administrators of the estate of Charles B. Boyes, deceased, in conducting a sale of the property involved to one Renner, who by a previous arrangement with said Churchill conveyed the land to him and to the Siskiyou County Bank. The sale was made after

order of court in that behalf and the amount obtained was the exact sum necessary to cancel a mortgage on the property in which Jerome Churchill and the Siskiyou County Bank were the mortgagees. The date of said sale was December 21, 1895. It was alleged that before the death of said Churchill in 1908 he acquired the bank's title to the property and conveyed it to the Churchill Company, a family corporation of which he was a member. A demurrer to the second cause of action was sustained September 21, 1912, and on October 7th of that year a "First Amended Complaint" was filed, seeking to set up a cause of action based upon the alleged fraud. A demurrer to this complaint was sustained and plaintiffs failing to amend their pleading, judgment was entered against them.

con

It was alleged in the first amended complaint that Jerome Churchill was at the time of his death in 1908 an administrator of the estate of Charles B. Boyes, deceased, and that he had never been discharged from the office of guardian of the minor heirs of said Boyes, to which he had been regularly appointed. It was also averred that no final accounting had ever been made in either the guardianship proceeding or the estate of Charles B. Boyes. The probate sale was made at public auction and was firmed by the court on January 11, 1896. The alleged fraud of Churchill was "that for the purpose of shutting out competition in bidding at said sale, and for the purpose of preventing other bids being made at said sale, other than his own", he caused the sale to be called at "about the hour of 9 o'clock" of December 21, 1895. It had been advertised to take place at 10 o'clock, and "by reason of no competitive bids the sum for which said premises were bid in was far below the real and true value thereof".

It thus appears that the sale took place more than fourteen years prior to the commencement of the action and more than sixteen years before the filing of the first amended complaint. On the confirmation of said sale Jerome Churchill, administrator, and Margaret Janes Boyes, widow of Charles B. Boyes, and administratrix of his estate, executed to the purchaser a deed which was recorded January 17, 1896. Thereafter the purchaser gave his deed to the property to Churchill and the Siskiyou County Bank, which was also recorded on January 17, 1896, more than thirteen years prior to the commencement of the action, and said deed had been of record more than twelve years before Churchill's death. Margaret Jane Boyes continued the administration of the estate of her deceased husband until April 21, 1910, when she resigned. It is to be noted that Margaret Jane Boyes is not a party to the action in any capacity and that since its commencement and before the filing of the first amended complaint she joined with six of her children in a deed granting to the defendants all interest in the property involved.

Respondents call our attention to the further fact that the other children, appellants herein, have been of the age of majority at least since a time prior to November 27, 1903. (Estate of Boyes, 151 Cal. 145.) But we need not refer to the opinion in that case, in which, by the way, Mr. Churchill's conduct in the