Murdock v. Miller

By the Court. McDonald, J. delivering the opinion. The Act under which this proceeding was instituted, (Pamphlet 1853-4, page 52,) provides remedies for landowners against intruders and against tenants at will, or sufferance, or in any other way, where there is no contract for rent. The three first sections of the act prescribe the remedy against intruders, and it was under these sections that the plaintiff in error proceeded in this case. He made his affidavit that the land was in possession of the defendant, who did not, in good faith, claim a right to the same, and refused to abandon the possession. An affi [370] davit was made by the defendant before the Sheriff, in which she admitted the possession, but deposed that she did in good faith claim a legal right to the possession. On this affidavit of defendant, an issue was formed. From the evidence submitted to the jury, it appeared that the entry of the husband of defendant, Maty Miller, on the land was lawful, that ho was on it under a contract for rent, and, as the witness stated, that he left a widow, the defendant, the presumption is that he died and she continued to occupy the premises. The legality of the possession when the party proceeds under the three first sections of this Act, must depend on the legality of the original entry; for if there is a holding over only, the statutes provide other and ample remedy. The body of the Act must bo so construed as to give a remedy against intruders, as the caption of the Act indicates to have been the intention of the Legislature; so the Court below ruled, and we affirm his judgment. Judgment affirmed.