assignable unless expressly restricted; and there being no restriction against an assignment by one tenant to the other, and all objection to such assignment having been waived the assignee has the right given by the lease to renew the same, and it was not necessary that both tenants should exercise the option.

ID. COVENANT FOR JOINT OCCUPATION WAIVED.-The covenant for joint occupation of the premises was waived by the action of the lessor after notice of the assignment relating to the assignee only. ID. CONVEYANCE OF PART OF LEASED PREMISES BY LESSOR TO ASSIGNOR -CONFLICTING CLAIMS TO RENT-INTERPLEADER.-Where the lessor conveyed part of the leased premises to the lessee who had assigned her interest in the lease to the defendant, and the vendee claims a portion of the rent due from the defendant, the defendant was entitled to require the original lessor and her vendee to interplead as to their conflicting demands to the unpaid portion of the rent.

APPEAL from an order of the Superior Court of Santa Clara County denying a new trial. John E. Richards, Judge.

The facts are stated in the opinion of the court.

Wm. P. Veuve, for Appellant.

S. G. Tompkins, for Respondent.

KERRIGAN, J.-This appeal is from an order denying plaintiff's motion for a new trial in an action under section 1161, Code of Civil Procedure, to recover the possession of certain orchard land in Santa Clara county.

The defendant went into possession under a written lease from his mother, the plaintiff, to himself and to his sister, Annie Leal. The term was for five years, to commence November 1, 1902, with the privilege of an additional five years, provided that the lessees elected to avail themselves of the privilege prior to July 1, 1907. The rent reserved was $600 per annum, payable annually on the first day of October. The lease provided that the lessees should personally occupy and cultivate the premises and should not underlet any portion thereof, nor assign the lease, without the written consent of the lessor, under penalty of forfeiture.

May 8, 1905, without the consent of the lessor, Annie Leal made an assignment to the defendant of all her interest in

the lease; and in June, 1907, by a notice in writing, the defendant notified the plaintiff of this assignment, and also that he elected in his own name to renew the lease for an additional term of five years.

The important question in this case is, Was there a breach of the conditions of the lease, and a consequent forfeiture thereof, by its assignment, without the consent of the lessor, by Annie Leal to the defendant?

The covenant is that the lessees shall not assign, and only one of them has done so. It does not provide that neither of the lessees shall assign, nor that one may not assign to the other; and construing this covenant strictly against the lessor, as the law requires us to do, it should be presumed to mean that the lease shall not be assigned by both. As the assignment was by one only of the lessees, there was no breach of the covenant, and therefore there was no forfeiture.

This conclusion is sustained by the case of Randol v. Scott, 110 Cal. 595, [42 Pac. 977]. There one of the covenants alleged to have been broken was as follows: "And the said lessees do hereby covenant . . . not to assign this lease, or permit any assignment thereof to be made, by bankruptcy or otherwise, without the written consent of the lessor." The breach alleged was a transfer or assignment of the interest of one of the tenants by proceedings in insolvency. The restriction there was stronger in several respects than the one here, and especially in that it provided that the lessees should not permit any assignment to be made. Yet the court held that the covenant not to assign was joint by two lessees, and was not broken by an assignment by one of the lessees of his interest therein. The court said: "When therefore under these circumstances it was covenanted merely that the lessees should not assign the lease, the meaning of the parties is presumed to be that the lease should not be assigned in the only way in which it could have been assigned, namely, by the joint act of the lessees. The lease therefore was not assigned within the meaning of the contract. The covenant does not provide that the lease should be forfeited upon the assignment by one of the tenants in common of his interests. . . . Of course it is unnecessary to cite authorities to the points that covenants in restraint of alienation are barely tolerated, and that con

tracts looking to penalties and forfeitures must be strictly construed." (See, also, 24 Cyc. 968.)

Even if there had been a breach of the covenant in the particulars claimed by plaintiff in the present case, the evidence tends to show that she waived it, for she was notified of the assignment in June, 1907, but she made no objection to it at that time, and upon the rent becoming due for that year she demanded its payment, and later affirmed the continuance of the lease by bringing suit for the recovery of the rent. (Randol v. Tatum, 98 Cal. 397, [33 Pac. 433].) The right of a tenant to renew his lease is, unless restricted, assignable. (2 Wood on Landlord and Tenant, 2d ed., sec. 413.) As just seen, Annie Leal's right to assign was not restricted, and even if it were such restriction was waived; therefore her assignee became entitled to all her rights and privileges under the lease, one of which was the right to an extension thereof for the term of five years, and it was not necessary, as suggested by plaintiff, that both tenants should exercise this option.

As there was no joint failure of the lessees to personally occupy, till and cultivate the premises, there was, for reasons already stated, no forfeiture of the lease by reason of the fact that Annie Leal, one of the tenants, removed from the premises; but if there were a breach of the covenant it was waived, for Annie Leal left the premises immediately after the assignment by her to defendant in May, 1905, and did not thereafter return; yet the lessor, knowing of her absence, made no objection thereto, and received the rent as usual in October, 1905, in 1906, and demanded and sued for it in 1907.

The plaintiff further contends that she was entitled to possession of the property on the ground that the defendant continued to hold after default in the payment of rent for the year 1907, and after statutory notice and demand. June 22, 1905, Margaret Spangler, the plaintiff, made and executed to Annie Leal a deed of gift, conveying approximately twenty acres of the land in question, and when the rent for the year 1907 was about to become due, Annie Leal, basing her claim upon this deed, demanded the sum of $200 as her proportion of the rent for that year. Upon the making of this claim defendant tendered to plaintiff the sum of $400, and thereafter commenced an action in the proper court against the plaintiff and Annie Leal, requiring them to interplead and litigate their

claim to the $200, the balance of the rent, which action is still pending and undetermined. Conflicting claims having been made on the defendant for the rent, he had a right to require the claimants to interplead. (Schluter v. Harvey, 65 Cal. 158, [3 Pac. 659]; McDevitt v. Sullivan, 8 Cal. 593.), The order appealed from is affirmed.

Cooper, P. J., and Hall, J., concurred.

[Civ. No. 604. Third Appellate District.-September 16, 1909.] WRIGHT & KIMBROUGH, a Corporation, Appellant, v. J. CLARENCE CARLY et al., Respondents.

TRUST CONTRACT BETWEEN DISTRIBUTEES-GUARDIAN OF MINOR MADE TRUSTEE-REPORTS-PAYMENTS-EXPIRATION OF TERM-Moor QUESTION.-Where, by the terms of a trust agreement made before distribution, the guardian of a minor is made trustee of the whole estate, during his minority, with duty to make annual reports to the court and monthly reports to the beneficiaries, and to pay each of them a stated sum monthly, and to distribute all surplus rents annually, after deduction of necessary expenses besides six per cent on all sums collected allowed to the trustees, the trust to terminate when the minor becomes of age, or dies prior thereto, if it appears that he has become of age, the construction of the trust agreement, as to its nature, effect, or validity, has become a merely abstract or moot question, which will not be passed upon. ID.-TRANSFER BY ADULT BENEFICIARIES DURING TRUST-RIGHTS OF SUCCESSOR. The adult beneficiaries had the clear right to transfer all their beneficial interests during the trust, and their successor became thereby vested with all of their rights under the trust agreement, to the payments thereby required to be made, independently of the question whether the adult trustees or their successor had or had not the right to terminate the trust agreement at any time and collect the whole share of rents pertaining to their interests.

ID.-DEMAND OF RIGHT TO RENTS-REFUSAL-COLLECTION BY TRUSTEE WITHOUT ACCOUNTING-RIGHT OF ACTION BY SUCCESSOR.-Where the successor made demand of the right to collect the share of the rents pertaining to the rights assigned, which demand was refused, and the trustee proceeded to collect all of the rents as before and

retained the same without any payments to the successor under the terms of the agreement, or any accounting thereunder, the successor is entitled at least to sue for an accounting. ID.-SUFFICIENCY OF COMPLAINT SINGLE CAUSE OF ACTION-DEMURRER IMPROPERLY SUSTAINED.-Where the complaint by the successor of the adult claimants states a single cause of action for the withholding of rents to which he was entitled without his authority or consent, and shows no ground of special demurrer, the court improperly sustained a demurrer thereto.

ID.-RIGHT TO RELIEF.-The court may grant any relief, and as many kinds of relief, as are consistent with the cause of action stated, and it cannot be objected to the complaint that such kinds of relief are asked for.

APPEAL from a judgment of the Superior Court of Sacramento County. C. N. Post, Judge.

The facts are stated in the opinion of the court.

J. O. Prewett, and Eugene Aram, for Appellant.

W. F. Renfro, and White, Miller & McLaughlin, for J. Clarence Carly and Harrison Tate, Respondents.

Chauncey H. Dunn, for Walter R. Sherman and Amy Zella Sherman, Respondents.

HART, J.-The court below sustained the demurrer of the defendants, Carly and Tate, to the first amended complaint, and the plaintiff having declined to amend, judgment was entered in favor of said defendants.

This appeal is by plaintiff from said judgment.

The facts which occasion this action are fully set out in the complaint and in a certain agreement between the defendants which is made a part of said complaint, and are in substance as follows:

On the eighth day of December, 1905, the superior court in and for the county of Sacramento, made and caused to be entered a decree distributing certain real property situated in the city of Sacramento, and described in the complaint, to Mrs. Minnie Zoe Crawford, Mrs. Amy Zella Sherman and Harrison Tate, as the sole heirs and devisees of one J. D. Tate, deceased.