Owen v. Doty

By the Court, Rhodes, J. This action was brought under the Forcible Entry -and Unlawful Detainer Act of 1850. The plaintiff alleges in his complaint that in April, 1863, he was peaceably in the actual possession of the premises in controversy; that while so in possession “ the defendant, by permission of the plaintiff, entered upon a portion of the same;” that on the 20th day of October, 1863, the plaintiff notified the defendant to remove from the premises and deliver the same to the plaintiff; and that the defendant refused to deliver up the possession, and [505] has since that time “ unlawfully, wrongfully and forcibly withheld said premises from the plaintiff’s possession,” etc. It is not agreed by the parties whether the action was brought under the thirteenth section or one of the preceding sections of the Act. As the Act and the several Acts amendatory thereof, under which the action was brought were repealed by the Forcible Entry and Unlawful Detainer Act of 1863, we shall not enter into an extended discussion of its provisions in this case. It was not intended that the summary proceedings provided for in the Act, should be a substitute for the action of ejectment, although the second section, literally read, is broad enough to include every unlawful withholding of the possession from the person entitled to it, whether the defendant’s entry was lawful or unlawful. The purpose manifested by the Act, when all the sections, except the thirteenth, are considered together, was to redress the wrongs occasioned by the acts of the defendant, committed with force employed, or threatened, or manifested, by restoring the possession to the plaintiff and punishing the defendant by fine and treble damages. The plaintiff must have had the actual possession when the unlawful or forcible entry was made by the defendant. If a forcible detainer is complained of, the entry of the defendant must have been unlawful, for the defendant who, having a right of entry, peaceably takes possession, cannot by any possibility be guilty of a wrong by defending his possession while he is entitled to it; and if his light to the possession has expired while he is in possession, the person thereupon entitled to succeed to the possession cannot by his own act, and without the aid of the proper Court, put the defendant out of possession; and if he attempts to do so, and force is used' or threatened by the defendant, the plaintiff cannot call on the Courts to punish the defendant for the acts of force which he (the plaintiff) has provoked. This case does not fall within those provisions of the Act we have been considering, for although it is alleged that the defendant forcibly withheld the possession, it is also alleged that [506] Ms entry was peaceable and lawful. The entry having been lawful and peaceable, the proper remedy is an action of ejectment, unless the case falls within the thirteenth section. That section, has for its object the removal of the tenant by the landlord by means of the summary proceedings provided for in the Act, in case the tenant fails to pay the rent, or holds over after the expiration of his term. The parties authorized to institute the proceedings are the lessor and his successors in interest, they occupying the relation of landlord, and the defendants are those to whom the premises are “ demised or let,” and those holding under them. The parties to the action must bear the relation of landlord and tenant, and the tenant must ■have held over after the expiration of his term, or contrary to the covenants of the lease, or failed to pay the rent. The complaint fails not only to state directly that the relation of landlord and tenant existed between the parties, but no facts are stated from which that relation could be inferred. The allegation is that “ the defendant by permission of plaintiff entered upon a portion of the same,” (the premises)—that is, that the defendant entered by the license of the plaintiff, not that he either took or held any right in the land under the ■plaintiff. A license to enter confers upon the licensee no interest in the premises, not even the right of temporary possession, but the possession is left in the person holding it when the license to enter was given. The entry by the defendant under the alleged permission of the plaintiff did not create the relation of landlord and tenant between the parties, and for that reason the case is not brought within the thirteenth section of the Act. Judgment reversed and cause remanded. Mr. Chief Justice Sanderson expressed no opinion.