The defendant entered into possession of the premises described in the complaint, under the lease mentioned in the findings. His term expired in October, 1871. In December of that year, plaintiff executed a lease of the same premises to one Dempsey, and one of the findings is that “ said Dempsey, under the same, entered upon and took possession of the premises described in said lease of defendant, except about two hundred acres, and said Dempsey is still in possession of the same.” It is also found “ that defendant is still in possession of two hundred acres of the original eight hundred and seventy leased from plaintiff.” In May, 1872, “ plaintiff duly served defendant with notice to deliver up to plaintiff the possession,” etc.

It is manifest that the District Court properly refused to give the plaintiff judgment for damages by way of mesne profits, because there is no finding as to the value of the use and occupation of the two hundred acres.

The respondent argues that the judgment of the District Court that defendant retain the possession of the two hundred acres ought not to be disturbed, because the lease was obtained fraudulently. But, assuming that a tenant who is let into possession by the lessor, can ever refuse to surrender the possession on the ground that the lessor falsely represented himself to be the owner of the property, there is no finding in this case that the plaintiff, by fraud, induced the defendant to accept the lease.

Respondent further urges that the judgment should be permitted to stand, because (by reason of the facts set forth in the finding with respect to the lease to Dempsey and his entry under it), the plaintiff had transferred his right to the possession of all the land. If a landlord, having the possession, refuses to give it to a lessee, according to the *207agreement, he renders himself liable to an action of ejectment; and if he cannot put the lessee in possession of all the land he contracted to give him, the latter is under no obligation to accept part, and will be justified in abandoning the premises. (Taylor’s Landlord and Tenant, 177, and cases cited.) But the lessee may waive his rights under the lease by accepting and occupying a portion of the lands. After letting the tenant into possession of the whole, if the landlord evicts him as to a portion of the premises, none of the rent reserved can be recovered; the Courts will not apportion the rent. If, however, the lessee prefers to occupy, but does not obtain possession of all he hired, he is liable on a quantum meruit for the part he occupies. (Hurlburt v. Post, 1 Bosw. 28; Lawrence v. French, 25 Wend. 443.) This must be, because the acts of the parties have amounted to an abandonment of the original contract, and a waiver of its terms. The original lease and his rights under it, including his right to the possession of the lands described in it, having been abandoned by Dempsey, and the lease having been rescinded by him and the plaintiff, it follows that the latter had "the right to the possession of the two hundred acres, and may maintain this action.

The third point of respondent is, that plaintiff is not entitled to a judgment for the possession of the tract described in his lease to the defendant, because the two hundred acres are not specifically described in the pleading or findings. This is answered by the case of Vallejo v. Fay, 10 Cal. 377.

The next objection to a recovery by plaintiff is, that Lorenzaña, having the paramount title, could have evicted defendant, and a demand for a surrender of possession, was equivalent to an eviction. Admitting, for the purposes of this case, that such constructive eviction could constitute a defense to an ejectment brought by the landlord and against his tenant holding over, it devolved on the defendant in the Court below to prove both the paramount title and a demand made before this action was brought.

Lorenzaña did not acquire the legal title until after de*208fendant had filed his answer herein. Lorenzaña made no application to be substituted as plaintiff, and the action was properly continued in the name of Camarillo. (Practice Act, Sec. 16.)

Judgment reversed and cause remanded, with direction to District Court to enter judgment in favor of plaintiff for the possession of the premises described in the complaint, without damages.

Mr. Justice Rhodes did not express an opinion.