This is an action of unlawful detainer. It is the same case as No. 13088, decision this day filed (ante, p. 592); but the appeal herein is from an order denying the defendant’s motion for a new trial, from an order made after final judgment denying the defendant’s motion to vacate and set asidethe judgment from which an appeal was taken in No. 13088, and from an order refusing defendant’s motion to strike out the plaintiff’s cost-bill.
The last two orders referred to are non-appealable. The appeal therefrom is therefore dismissed. (Eureka etc. R. R. Co. v. McGrath, 74 Cal. 49.)
It is claimed by the appellant that the complaint does not state a cause of action against the defendant, because there is no allegation that the defendant was given the three days’ notice required by section 1161 of the Code of Civil Procedure. But the tenancy alleged in the complaint is a tenancy at sufferance, and not at will; and as the action is based upon the first subdivision of the section referred to, no notice was required. (Canning v. Fibush, 77 Cal. 196; Stoppelkamp v. Mangeot, 42 Cal. 322.) It is also claimed by appellant that Chay Yune should have been made a party plaintiff, because *598it is shown in the complaint that he and the plaintiff are co-tenants. Section 884 of the Code of Civil Procedure answers this objection; it provides that any number less than all of the tenants in common may jointly or severally prosecute or defend any action for the enforcement or protection of their rights.
There are several grounds, however, upon which the judgment must be reversed. The complaint alleged that the monthly value of the rents and profits of the premises was the sum of $125. The answer denied that the rental value of the premises was the sum of $125, or any sum greater than the sum of $75. There is no finding upon this issue, and the record shows affirmatively that findings were not waived. There was an issue, also,— and it seems to have been the only question inquired into at the trial,— as to whether the defendant was holding possession of the premises by and with the consent of Chay Yune. Upon this issue, also, there was no finding. It is claimed by respondent that findings in actions of this kind are not required. This position, however, is manifestly untenable. (Code Civ. Proc., sees. 633, 634, 1174, 1177.)
The evidence does not support the judgment. It is expressly alleged in the complaint that “this plaintiff and one Chay Yune are successors in interest of said E. L. Goldstein, and to said building on the northwest corner of Dupont and Clay streets, and in and to said lease executed to Pee Han, and that they hold title to the same as tenants in common.” The uncontradicted evidence shows that the defendant was in possession of the property with the consent of said Chay Yune. All that the plaintiff was entitled to, therefore, was to be let into possession with the defendant, — to enjoy his moiety. (Freeman on Cotenancy and Partition, secs. 180, 220; Pickard v. Perley, 45 N. H. 191; 76 Am. Dec. 153; Ord v. Chester, 18 Cal. 80.)
One tenant in common may, “by either lease or license, . . . . confer upon another person the right to occupy and use the property of the co-tenancy as fully as such *599lessor or licensor himself might have used or occupied it if such lease or license had not been granted. If either co-tenant expel such licensee or lessee, he is guilty of a trespass. If the lessee has the exclusive possession of the premises, he is not liable to any one but his lessor for the rent, unless the other co-tenants attempt to enter and he resists or forbids their entry, or unless, being in possession with them, he ousts or excludes some or all of. them.” (Freeman on Cotenancy and Partition, sec. 253.) There is no evidence tending to show that the defendant ever refused to allow the plaintiff to enjoy the use of the premises with him. The judgment does not confine the plaintiff’s right of recovery to his own moiety, but provides that the plaintiff shall have and recover from defendant the restitution and possession of the premises described in the complaint.
The judgment is erroneous in another regard. As stated before, there was an issue as to the rental value of the premises. The court gave the plaintiff judgment for the sum of $375, “ being trebled rent for said premises.”
The record fails to show that any evidence on the question of rental value was offered by either party. The action was commenced three days after the alleged expiration of the defendant’s term. It is difficult to see, therefore, how any evidence under the allegation as to rental value could have justified the allowance of $375. Even as against a trespasser, a tenant in common cannot recover all the rents and profits. (Muller v. Boggs, 25 Cal. 175.) There is evidence tending to show that the plaintiff and his co-tenant had entered into an agreement by the terms of which each was to collect the rents for every alternate period of six months. Perhaps under this agreement the plaintiff in a proper action would be entitled to recover all rents and profits due for the periods allotted to him.
It is claimed by respondent that the order denying the motion for a new trial should be affirmed because the notice of intention was served too late. The facts upon which this contention is. based were considered in Quan *600Wo Chong v. Superior Court, No. 13237, upon a petition by the defendant for a writ of mandate to compel the superior court to settle the appellant’s statement on motion for a new trial. A peremptory writ was issued therein on May 24, 1889.
The order denying the motion for a new trial is reversed.
Harrison, J., and Garoutte, J., concurred.