(after stating the facts.) The question in this case is whether or not the complaint makes out a case of forcible entry and detainer, or of unlawful detainer, under the statute; and if either, which one, since, for the purposes of the demurrer, the statements of the complaint are to be taken as admittedly true.
Without stopping to consider whether or not the case presented would be one of forcible entry and detainer were it made to appear that the entry of the defendant was entirely disconnected from any act of Louis Boggy, the tenant of the plaintiff, and rested solely on his contract with Mary Boggy, a third party, we will consider the holding of the defendant to be under Louis Boggy, plaintiffs’ tenant, since it is alleged that, by collusion with said tenant, he entered -into and holds, etc. Viewing it in this light, the complaint makes out a clear ease of unlawful detainer, sinee it must be admitted that the tenant, Boggy, had lawful right to admit the defendant in as his sub-tenant, to hold until his lease should expire; and for that reason the entry of the defendant was lawful and peaceable.
The third section of the 70th chapter of Sand. & H. Dig., styled “Forcible Entry and Detainer,” reads as follow^, to-wit: “See. 3444. Every person who shall willfully and without right hold over any lands, tenements or possession after the determination of the time for which they were demised, or let to him or the person under whom he claims, or who shall peaceably and lawfully obtain possession of any such and shall hold the same willfully and unlawfully after demand made in writing for the delivery or surrender thereof by the person having the right to such possessions,” etc.
The demand .was properly made, according to the statement of the complaint; and while it may be technically said that the defendant did not claim under the tenant, Boggy, yet he entered by his permission, and his obtaining of possession was peaceable and lawful, and his refusal to surrender after proper demand made brings the case squarely within the conditions of unlawful detainer, as defined in the section quoted. The complaint therefore stated a good cause of action, and the demurrer should have been overruled.
For the error in sustaining the demurrer to the complaint, the judgment is reversed, and cause remanded, with directions to overrule the demurrer, and proceed.