Dysart v. Enslow

Opinion of the court by HaiNer, J.: This action was brought under section 480b of the Statute of 1893, which provides: “Any justice, within his proper county, shall have power to inquire, in the manner hereinafter directed, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who having a lawful and peaceable entry into land or tenements, unlawfully and by force hold the same, and if it *391 be found, upon such inquiry, that an unlawful and forcible entry hap been made, and that the same lands and tenements are held by force, or that the same, after a lawful entry, are held unlawfully, then said justice shall cause the party complaining to have restitution thereof.” No question cf title is involved in this case. The only question to determine in an action of this character is, who was entitled to the immediate possession of the premises at the time the action was commenced? To maintain this action, the plaintiff must have a clear right of possession at the time the notice to quit and vacate the premises is given. In the case of Olds v. Conger, 1 Okla. 232, 32 Pac. 337, the court laid down this rule: “In an action of forcible detainer, the title of the property is not, and cannot be, tried and determined. The right of possession is the only right involved.” It was also decided in this case that, before a lessee could set up a claim to the leased premises which is adverse to the lessor, he must first surrender the possession obtained under the lease, and then assert his right in a proper action. The first defense by the appellants was a general denial, which put in issue everything material to be determined in this action. The special defense set up the claim that the right of possession of the appellee was based upon a certain instrument, which was denominated a “trust deed” or “life lease,” which was executed by the appellants to the appellee on the 4th day of November, 1895, and that said instrument was executed under certain false and fraudulent representations by the appellee to the appellants, and for that reason said instrument was and is absolutely null and void, and the appellee could claim nc right by virtue of said instrument. *392 The execution of the instrument is admitted by appellants, but they seek to avoid it on the ground of fraud, and it is contended that it is a proper defense to this action. For the purpose of this action it is immaterial whether this instrument is a deed of trust or a lease during the natural life of the appellee. There were no conditions or reservations made in this instrument that the appellants were to continue in possession of the premises. It was not contended that the appellants unlawfully and forcibly entered upon the land in controversy. But it is contended that they are unlawfully and wrongfully withholding the possession of said premises after they, have been given notice to1 quit and vacate the same as required by law. An action of forcible detainer is purely a proceeding at law, and does not and cannot involve the exercise of equitable jurisdiction. Where the defendants plead a special defense in their answer, alleging that the plaintiff’s right of possession is based upon a certain instrument, denominated a “trust deed,” executed by the defendants to the plaintiff, and as a defense to the action the defendants aver that such instrument is void because the plaintiff had made certain false and fraudulent representations in procuring the deed, the equitable powers and jurisdiction of the court cannot be invoked for the purpose of determining the title to the land in controversy, or to annul or cancel the so-called trust deed. The evidence in this case shows that the appellants were in possession of the premises as the tenants of Enslow, and that they were seeking to set up an adverse title, and to' hold over in violation of the verbal lease made by C. C. Dysart, and -also in express *393 violation of the terms and conditions of the life lease or deed of trust. The testimony shows that Enslow was to receive a portion of the crops as rental for the use of the premises. We think the evidence clearly shows the relation of landlord and tenant between these parties, and that the appellants are seeking to avoid the terms of the lease by alleging fraud, which they sought to prove in this action. We think any testimony admitted at the trial tending to show that the life lease or deed of trust was made fraudulently was not competent testimony íd this proceeding. In the case of Kellogg v. Lewis, 28 Kan. 535, Chief Justice Horton, speaking for the court, lays down the following rule: “An action of forcible detainer does not involve the exercise of equitable jurisdiction, but is a law proceeding; and where a defendant has entered into the possession of premises under a written lease, which has not terminated by limitation or the mutual agreement of the parties, the plaintiff cannot in such an action call into exercise equity powers, and ask restitution upon the grounds that the defendant has forfeited his right to hold possession by committing waste upon the premises, by failing to keep the same in repair, by. selling and devoting to his own use the undivided stock placed in his care, or by his neglect to keep and care for the stock according to the terms of the lease.” A person may be the owner of the absolute title, both legal and equitable, of a tract of land, and yet not entitled to the possession thereof. In this case, even if the appellants had conclusively shown that they were both the legal and equitable owners of the premises, yet if it was shown that they had made and executed a lease *394 whereby Enslow was to have the absolute control of the land for life, or for a certain period, while the instrument was in full force and effect, he would be entitled to the peaceable possession of the premises. We think, clearly, that under the evidence in this case the appellants were estopped from setting up any right or claim adverse to the appellee, and that before they can bring an action to- annul or cancel the deed of conveyance they must surrender the possession of said premises to Enslow. The entire evidence which was offered by the appellants in support of the allegations of fraud as pleaded in the answer and amended answer was incompetent, and not admissible, because the court had no equitable jurisdiction to try and determine these questions in this action. Had a demurrer been interposed to the special defense, the court would have properly sustained it. This cuestión was before the supreme court of Michigan in 1895, involving the right of possession of a certain tract of land. It appears that in October, 1893, the defendants executed and delivered to the plaintiff a deed to a certain tract of land. The deed contained the following proviso-: “Parties of the first part reserve the use of said described lands until April 1, 1894.” After said date, defendants refused to vacate, and summary proceedings were commenced before a circuit court commissioner to oust them. To- establish her right of possession, the plaintiff produced her deed. The defense was that the plaintiff procured the deed by fraudulent misrepresentation. The court held that in a summary proceeding to recover the possession of the land the deed purporting to convey the premises in question is admis *395 sible to show plaintiff’s right of possession, and the defense of fraud in the procurement of the deed by plaintiff is not available in summary proceedings to recover possession of the land. (Gale v. Eckhart, 65 N. W. 274; Paldi v. Paldi, 54 N. W. 903; Moran v. Moran, 63 N. W. 989.) In Moran v. Moran, supra, the court.said: “In the present case the deed is prima facie valid. It conveys perfect legal title, and its effect can be avoided, if at all, only upon equitable grounds.” It appeared in this case that the deed was collusively given in execution of a land contract, possession of which was surreptitiously obtained in the absence of the party holding it. It was held that this deed was not absolutely void in law as for fraud, as it passed the legal title to the grantee named, and the contract purchaser could not cause it to inure to himself except by showing his equitable right and title as against the grantee, and this showing could not be made in an action of ejectment. In the case of Paldi v. Paldi, supra, the court said: “It is claimed that Justin L. Paldi obtained the deed from the mother of the defendant by fraudulent representations. This defense cannot be made in an action of ejectment.” The principle enunciated in these cases has been asserted by this court in the case of Olson v. Thompson, 6 Okla. 576, 52 Pac. 388, and we think the doctrine laid down in this case by our supreme court is applicable to the case at bar. This case was an action in replevin, involving the possession of a note. Mr. Justice Tarsney, delivering the opinion of the court, said: “In this case plaintiff in error based his right of pos *396 session of the note upon a claim that he executed the note and delivered it to the defendant under menace of duress. If this were true, it would not make the note void; for it is not the law of this Territory that contracts to which the party obligated has not freely given his consent, or which have been obtained through duress or menace, are void, but contracts so obtained are valid unless rescinded in the manner provided by statute. They are simply voidable, not void. (St. 1893, ch. 16, art. 1, secs. 7, 8.) So long as the note was voidable only, and not void, the payee, not the maker, was entitled to the possession. The plaintiff in error may havtj a right to have this note canceled, but he has no right to the possession of the note until such cancellation has been decreed. The distinction between law and equity has not been abolished in this Territory. The modification as to the form of action and the change effected is embraced in section 3882 of the Statutes oí 1893, which provides That the distinctions between law and equity suits, and the forms of all such actions and suits heretofore existing are abolished, and in their place there shall be hereafter but one form of action which shall be called a civil action.’ The principles of equity are as' deeply imbedded in our laws as though no -such code provision existed, and he would be regarded as a rash legislator who would propose the entire elimination of equity from our jurisdiction. Nothing but disaster could result from a change so radical. The elimination of distinctions in forms of actions does not change rights of property, nor change any right to- possession of property.” We think the evidence is sufficient to sustain the judgment of the court below, and that no error was committed affecting the substantial rights of the appellants in the trial of this cause. The judgment of the district court is therefore affirmed. All of the Justices concurring.