This action is based upon the thirteenth section of the Forcible Entry and Detainer Act, as amended by the third section of the Act of 1862. The complaint alleges that the plaintiff demised the premises to the defendant for one year ensuing the first of October, 1860, at the yearly rent of two dollars per acre ,• that on or about the first of October, 1860, the defendant entered into possession of the premises under the lease, and that after the expiration of the term the defendant failed and refused to deliver the possession of the premises to the plaintiff, or to pay the rents therefor; and that when such delivery was demanded, in writing, on the third of June, 1862, the defendant neglected and refused to deliver. The complaint was filed July 16,1862.

The complaint was demurred to on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and thereafter the case was tried upon the issues of fact. The verdict of the jury was for the plaintiff, and the defendant appeals from the judgment and from an order denying his motion for a new trial.

I. It is claimed that the order overruling the demurrer was erroneous.

It is urged that there is no allegation in the complaint that the holding over on the part of the defendant was wrongful, *35and that in the absence of such allegation it must be presumed that the holding over was under some new and substantive agreement, or at least by leave and license of the plaintiff.

When a tenant holds over after the expiration of his lease, he is regarded by the common law as a tenant at sufferance; but this estate may be destroyed whenever the true owner shall make an actual entry oh the lands and oust the tenant; for before entry he cannot maintain an action for trespass against the tenant by sufferance as he might against a stranger; and the reason is, because the tenant being in by lawful title, the law, which presumes no wrong in any man, will suppose him to continue upon a title equally lawful, unless the owner of the land, by some public and avowed act, such as entry is,' will declare his continuance to be tortious. (2 Blk. Com. 150.)

Further: section thirteen, as amended by the Act of 1862, assumes the rule of the common law to be as above stated; for it provides that when a tenant holds over after the expiration of his term, that a demand for delivery of possession “maybe made at any time within a year after the termination of the lease;” and if demand is so made, that thereupon the lessor may proceed to expel the tenant. The only change made in the common law by the Act of 1862 lies in the fact that it dispenses with formal entry and substitutes therefor a written demand.

The complaint does not show any renewal of the lease in terms, nor does it show a state of facts from which the law will intend a renewal, binding alike upon both parties. It does not state that the plaintiff received rent, neither does it state any other fact raising a presumption in law that the lease had been renewed; nor does it disclose facts amounting to an estoppel in pais ; and if the fact that the plaintiff omitted for the period of eight months to make a formal demand for a delivery of the premises, imports that, ad interim, the defendant was in possession by license or acquiescence on the part of the plaintiff, still the license was a revocable one under the adjustments of the Act of 1862, and was revoked, in fact, by *36the formal demand alleged, made, as it was, within the time which the Act prescribes.

II. The appellant farther insists that the Court erred in refusing to admit evidence tendered by him in support of a special defense alleged in the answer.

The defense, as stated in the answer, is as follows: “ The defendant avers that said plaintiff agreed to and with said defendant, on or about the first day of December, 1861, that he, said defendant, should and might have the possession of said premises for one year ending October 1, 1862; and to pay as rent therefor two dollars per acre; said rent to be paid at the harvest season of 1862, in the event that the final survey and confirmation of said Rancho of Milpitas should include said premises. And it was also then and there agreed between said plaintiff and defendant that if said final survey and confirmation should be so made by the United States District Court in San Francisco as to exclude said premises and throw them without the boundaries of said rancho, then that said plaintiff would not ask or receive from said defendant any rent for said premises for said year ending October 1, 1862.”

The counsel of the respondent justifies the ruling of the Court excluding the evidence tendered in support of this defense, on two grounds:

First—That the contract set up was executory in its character.

Second—That the defense was inconsistent with other defenses asserted in the answer.

It may be admitted that the contract was executory in its character, still it vested in the defendant, in presentí, a right to possess the lands until October 1, 1862, and a right in the plaintiff to the stipulated rent, subject only to the contingency named in the contract. It was not an agreement for a lease to be executed before the defendant1' could possess his term, but was itself a lease in legal effect, and not executory in any sense except in the sense in which all leases are executory: that is, the right created by it remained to be enjoyed.

As to the second position taken for the respondent in sup*37port of the Court’s ruling, it is fully met by the decision in Klink v. Cohen, 13 Cal. 623 : “ If inconsistent defenses are set up, the defect must be reached by motion to strike out, or in some cases by demurrer; and if no objection be taken to the answer on this ground, defendant, on the trial, may rely on any of his defenses, as under the old system.”

Judgment reversed and cause remanded.

Mr. Justice Rhodes, having been of counsel, did not sit on the trial of this case.