it as a clue to the intention of the parties." In said case of California Packing Corp. v. Grove, supra, the following pertinent language appears: "Independently of any construction based upon the acts of the parties, the language used in the description is sufficiently definite. In considering this point the court is required to keep in mind two leading principles. First, in a conveyance of real property, the law exacts only such description as, when aided by evidence applying the description to the property, will serve to identify it, and, secondly, it requires no such completeness of description in executory contracts. Upon the second point we cite Marriner v. Dennison, 78 Cal. 202 [20 Pac. 386], where the court says: 'But the rule as to particularity of description required in executory contracts to convey is extremely liberal in favor of their sufficiency. The rule is that where the description, so far as it goes, is consistent, but does not appear to be complete, it may be completed by extrinsic parol evidence, provided a new description is not introduced into the body of the contract, and the complaint must contain the averments of such extrinsic matter as may be necessary to render the description complete. But parol evidence cannot be heard to furnish a description. The only purpose for which such evidence can be heard is to apply the description given to the subject matter. Thus if the description were my farm in Los Angeles County, an allegation in the complaint that I owned but one farm in said county and where it was situated, would apply the description to the proper subject matter and render it certain. But if the description where a farm in Los Angeles County, it could not be rendered certain by the allegation of such extrinsic matter.' Again, in another case, the court says: 'This, it is to be remembered, is a contract for the sale of land and not a deed of grant of the land, and much greater liberality is allowed in construing the descriptions contained in such contracts. This certainty required in deeds is not essential where, even by parol evidence, the property in contemplation of the parties to be conveyed can be definitely ascertained. And even in the case of deeds, the ancient strictness of the rule is not adhered to.' (Lange v. Waters, 156 Cal. 142 [19 Ann. Cas. 1207, 103 Pac. 889].)

"But in this case now under review, the description of the land and its identity are only incidental to the main purposes of the contract. The contract does not involve the title or right of possession of the land. And it seems that in such case, even a less stringent rule applies than in the case of executory contracts to convey land. As said by this court, quoting from an earlier case: 'Much greater liberality is allowed in construing and curing defective descriptions in brokers' contracts than in a deed of grant of land, for so far as the statute of frauds is concerned, the terms of the employment are the essential parts, and such contracts will not be declared void merely because of a defect, uncertainty or ambiguity in the description of the property to be sold or exchanged when such defect can be cured by the allegation or proof of extrinsic facts or circumstances.' (Goodrich v. Turney, 44 Cal. App. 516 [186 Pac. 806].)"

The cases of Carr v. Howell, 154 Cal. 372, 377 [97 Pac. 885], and Kent v. Williams, 146 Cal. 3, 10 [79 Pac. 527], are also in point upon the subject under discussion.

There are no other matters requiring discussion and the judgment is affirmed.

Nourse, J., and Sturtevant, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 20, 1923.

[Civ. No. 4051. Second Appellate District, Division Two.-June 21, 1923.]

ALBERT WEDDERIEN, Appellant, V. ALONZO W. WOOD et al., Respondents.

[1] SPECIFIC PERFORMANCE-CONTRACT TO SELL REAL PROPERTY-AFFIRMATIVE RELIEF FOR DEFENDANTS-PLEADING-RENTS QUIETING TITLE. In an action to compel specific performance of an alleged oral agreement to sell real property, it is proper for the defendants, after admitting in their answer that the plaintiff has been in possession of the property, to allege facts which, if true, establish that the possession and detention thereof was unlawful and

to ask affirmative relief for the recovery of rent for the use and occupation of the premises and also that their title to the property be quieted.

[2] ID.-FINDINGS EVIDENCE.—In this action to compel specific performance of an alleged oral agreement to sell real property, which contract the complaint alleged had been partially performed, there was sufficient evidence to support the finding of defendants' ownership of the property and plaintiff's unlawful withholding of its possession and also to support the finding to the effect that the allegations of plaintiff's complaint as to the making of the alleged agreement giving him the right to purchase the premises were untrue.

[3] ID. DENIAL OF LANDLORD'S TITLE-NOTICE TO QUIT.-A tenant who denies his landlord's title cannot claim a right to any notice to quit.

[4] ID.-DELAY IN ASSERTING RIGHTS-CREATION OF AGREEMENT.—If the alleged oral agreement to sell the premises to plaintiff was not made, the delay upon the part of defendants in asserting their rights to the premises could not create such an agreement.

APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie R. Hewitt, Judge. Affirmed.

The facts are stated in the opinion of the court.

Robert F. Shippee for Appellant.

Tobias R. Archer for Respondents.

CRAIG, J.-This is an action for specific performance of an alleged oral agreement to sell real property which the complaint states had been partly performed by the plaintiff. Judgment was rendered for the defendants, quieting their title to the property involved as against the plaintiff, adjudging that defendants have possession and the value of the use and occupation of the premises. The defendants Alonzo W. Wood and Ellie Wood, answering, claim to be the owners of the property in question and asked to have their title to said property quieted as against the plaintiff. The plaintiff moved to strike the allegations of this character from the answer, which motion. was denied. One of the grounds upon which appellant

3. Denial of tenancy as waiver of notice to quit, or of demand of possession, notes, 42 Am. Dec. 133; 25 L. R. A. (N. S.) 104.

To

relies is that this motion should have been granted. sustain this contention he relies upon section 437 of the Code of Civil Procedure and asserts that the paragraphs of the answer sought to be stricken out are neither a general nor special denial of the material allegations of the complaint, nor a statement of new matter constituting a defense or counterclaim.

[1] As we have said, the suit is one for specific performance of a contract for the sale of real property. The answer admits that the plaintiff has been in possession of the property; alleges facts which, if true, establish that the possession and detention thereof was unlawful, and asks affirmative relief for the recovery of rent for the use and occupancy of the premises; and also that the title of the defendants Alonzo W. Wood and Ellie Wood be quieted. We think these matters were appropriate to be litigated in the instant action and to be pleaded by way of answer. In so far as the character of the possession of the property by plaintiff was concerned the allegations of unlawful detainer constituted a part of the defense.

The claim for rent clearly arose out of the same transaction as that which is the basis of the plaintiff's alleged cause of action and hence was a proper matter to be pleaded by way of the answer. (Secs. 437, 438, Code Civ. Proc.) For the same reason it was permissible to seek to quiet the title of the defendants as against the plaintiff's claim to ownership of the property in question. The mere filing of this action alleging the existence of a contract to convey was sufficient to render the defendants' title unmarketable Had the plaintiff seen fit to have dismissed, the defendants could have secured relief only through an action to quiet title. The cloud which rested upon defendants' title grew out of the transaction which formed the subject matter of the instant suit. Defendants might have instituted a separate proceeding to quiet title, but they were not required to do so.

[2] Appellant specifies ten particulars in which it is claimed that the evidence is insufficient to support the findings. The first three are grouped together under the assertion that the evidence does not uphold the finding of respondent's ownership of the property and the appellant's unlawful withholding of its possession on the first day of

November, 1920. It is admitted that the respondents may be regarded as the owners from the date of recording the sheriff's deed, which occurred September 30, 1920; however, the claim is made that plaintiff was at least a tenant from month to month and entitled to one month's notice to quit. Such a notice was given on October 27, 1920. [3] The tenant who denies his landlord's title cannot claim a right to any notice. (McCarthy v. Brown, 113 Cal. 15 [45 Pac. 14]; Abbott v. Kellogg, 18 Cal. App. 432 [123 Pac. 227].)

Therefore if the evidence supports the findings that the allegations in the complaint of the making of the oral agreement for the sale of the property are untrue, and also those findings of fact establishing defendants' ownership, the plaintiff must be held to have been in unlawful possession on November 1, 1920. The sheriff's deed was recorded before that date, and so, for the purpose of these three specifications of error, the findings are sustained.

The next point which merits comment is that the evidence is insufficient to support finding number 3, to the effect that the allegations in the complaint of an oral contract giving plaintiff the right to purchase under certain conditions, and that pursuant to said contract plaintiff paid defendants a sum in excess of $1,000, and entered into possession of the property, are untrue. The trial court found that no such contract as that alleged was ever made. The evidence is susceptible of this construction, and, hence, the judgment will not be disturbed upon this ground. The complaint alleges the agreement to have been made on February 14, 1918. Plaintiff's testimony was that the arrangement was oral. Alonzo W. Wood testified concerning the same conversation that he made the remark that if Wedderien could get the money within three months he would throw $150 off from the principal sum of $2,531.10, then owing to the defendants. The witness was then asked: "Did he make any further offer of payment of that sum or any other sum?" To which he replied: "No, sir," thus denying the agreement as alleged in the complaint and testified to by the plaintiff. Although there is other evidence in the record to sustain the court's findings here under consideration, the testimony above quoted is alone sufficient to create that conflicting condition in the evi