Opinion of the court by

The only question to be determined by this court is: Was the action of the probate court in overruling the motion for a judgment on the pleadings, and entering judgment for defendant, such error as would reverse the case?

An examination of this answer will show that it contains two counts. The first one admits the allegations of the plaintiff’s petition as to the ownership of the property and the occupancy of the same by the defendants, as alleged in the petition. The second count contains the only denial of the allegations of said petition: This count is a denial that the defendants are indebted to the plaintiff in the precise sum charged in the petition, and denying that the use and occupation of the premises is worth the sum mentioned in the petition. This is clearly what is known in law as a negative pregnant, and we take the rule to be well established that a negative pregnant is no denial at all, and where such a pleading is filed by way of an answer, that the allegations of the petition are treated as admitted. (Swartzel v. LeBreton, decided this present term of court.)

The supreme court of Colorado, in the case of Gale v. James, 19 Pac. 446, say:

“Plaintiff in an action to recover for labor and services pleaded the common count. The answer denied that the defendant owes the plaintiff the sum of $294.50, or any sum whatsoever on account or otherwise. Held that this was, a mere denial of a legal conclusion, insufficient, under the code practice, and that plaintiff was entitled to judgment.”

That court in deciding that case uses this language:

*318 “A denial simply of a legal conclusion stated in a common count, without denying the facts from which such conclusions are derived, does not fulfill the requirements of our code practice.” And they cite in support of this: (Watson v. Leeman, 9 Colo. 200; 11 Pac. 82; Bliss on Code Pleading, sec. 334.)

In the case of Dillon, Sheriff, v. Spokane County, 17 Pac. 889, which was an action brought against a sheriff for default in paying over certain taxes, the complaint averring that defendant collected delinquent taxes in certain years, naming 'them, and fixing a specific sum of money. The answer denied that defendant collected exactly the sum alleged in the complaint. It was there held that such an answer was virtually a confession of plaintiff’s cause of action. The court in that case says:

“The only denial * * in the answer is a denial of having collected exactly the sum the complaint alleges, but does not deny having collected any other than the exact sum alleged, whether more or less. This denial is worthless, and, by failure to deny, the defendant confessed the collection of all those sums, less, perhaps, a cent, or it may be a cent more. If there were nothing else in the case, these pleadings would' justify the judgment.”

In the case of Swanholm v. Reeser, 31 Pac 804, the supreme court of Idaho say:

“The denial of indebtedness, without a denial of the facts alleged in the complaint, out of which such indebtedness arose, or follows, is a conclusion of law, and raises no issue of fact.”

The petition in this case states facts which as a matter of law, creates a leasing, as claimed in the petition; as, they allege in the petition that the defendants entered into a lease of *319 the premises with the plaintiff, agreeing to pay rent at the rate of fifty dollars a month, during the terms of the lease, that said lease expired on the 31st day of March, 1902, and that thereafter the said defendants held over said term until the 19th day of June, 1902, without having yielded or surrendered the possession of said premises; that the use and occupation thereof, amounted, under the terms of the lease, to $131.66. We take the law to be well established that a tenant holding over after the expiration of his term, is deemed, in law, to hold over as tenant at the same rental stipulated in the lease. (Reithman v. Brandenberg, 4 Pac. 788; Zepper v. Reppy, 25 Pac. 164; Weaver v. Southern Oregon Co., 48 Pac. 167.)

But we take this principle to be too well known, and too long established, and to be too well settled as a principle of the law of the land,, to make it necessary to encumber this decision, with the further citation of authorities upon this point. This being true, it follows that the petition in this ease, pleads a state of facts which, if true, would entitle the plaintiff to recover the amount claimed in her petition. Of these facts, there is, in the answer of the defendant, np denial, as it is admitted that the plaintiff owned the premises, and that the defendant occupied them for the time set forth in the petition. The only allegation amounting to a denial of any part of the petition is, that defendant denies that he owes the exact amount sued for by the plaintiff, and further denies that the use and occupation of the premises is worth the amount claimed by the plaintiff. It seems to us that under this state of pleadings, that the allegation of the reasonable value of the rent of the premises is mere surplusage, and a *320 danml of a matter which is merely surplusage does not amount to a denial of the material allegations of the petition. On the whole, we think that this answer amounts to nothing more than a negative pregnant, and for the reasons' expressed by this court in the case of Swartzel v. LeBreton, the judgment of the probate court is reversed and remanded, with directions to that court to sustain the motion for judgment on the pleadings.