Lyles v. Murphy

Walker, J. It is somewhat difficult to determine the precise nature of this action. The plaintiff brought his suit to recover the possession of real property, and for rent due ; and in his original petition tendered an issue of title, but amended his pleading, counting only upon his own possession at the time of the making of the lease to the defendant, the defendant’s entry under the lease, his forfeiture of the lease by refusal to pay rent, and his refusal to surrender. The defendant sets up title in himself. The rule of law is well settled that a tenant in possession cannot dispute his landlord’s title. He must be ousted of his possession, or so disturbed in it as to make it necessary to give his landlord notice to defend the title, or he will not be permitted to set up title in himself; nor will he be permitted to defraud his landlord of his title. The defendant in his pleadings sets up different matters in avoidance, and finally demurred to the plaintiff’s evidence." The appellant joined in the demurrer. The court, sustaining the demurrer, gave judgment for the appellee, which, we think, was error. Had this been the ordinary [79] action of trespass to try title, it may be that the appellee could show a better title to the premises than the appellant ; but in the opinion of this court, for anything disclosed by the record, he has not acquired it in such a way as to avoid the payment of rent. There is nothing to show that he was ever evicted from the premises or surrendered his lease. There can be no controversy about the facts in the case; the demurrer admits their truth, but denies their competency, and it was only necessary for the plaintiff below to prove his own possession, the entry of the defendant, and the expiration or forfeiture of the term. Some objection is made to this suit on the ground of misjoinder of causes of action. At common law this objection would be good, but under our system we think the objection cannot be maintained. We have no distinction here between the action of ejectment — if,indeed, that action remains to us — and the action of debt; nor have we drawn a distinct line between personal and real actions. Undoubtedly several actions may have grown out of the transaction between these parties. The plaintiff might have sued the defendant for each month’s rent as it fell due, or he might have brought an action for forcible detainer to recover possession, and another for the rent due. But our laws and the decisions of our courts favor the joinder of all causes of action arising between the same parties in the same right and growing out of the same transaction. Bor the reasons given, the judgment of the District Court is reversed and the cause remanded. Reversed and remanded.