Moody v. Ronaldson

Brown, C. J., 1. Under section 4005 of the Eevised Code, when a tenant holds over, the owner, his agent, or attorney at law, or attorney in fact, may demand possession of the premises, and if the tenant refuses or omits to deliver the possession when so demanded, may go before the Judge of the Superior Court, or any Justice of the Peace, and make oath of the facts. When said affidavit has been made, the next section provides that the officer before whom it is made, shall grant and issue a warrant or process, directed to the sheriff or his deputy, or any lawful constable of the county where the land lies, com [654] manding and requiring him to deliver to the owner or his representative, full and quiet possession, etc. We think a just and fair construction of these sections authorizes the administrator of a deceased owner, who represents him, and is, in fact, for the purposes of paying debts and of distribution, the legal owner of the lands of the estate which he represents, to make the affidavit, and institute the proper proceeding to expel the tenant who holds over, and refuses to surrender the possession on demand. 2. Section 4007 provides that the tenant may arrest the proceedings and prevent the removal of himself and goods from the laud by declaring, on oath, among other things, “ that he does not hold the premises, either by lease or rent, or at will, or by suffrance, or otherwise, from the person who made the affidavit on which the warrant issued, or from any one under whom he claims the premises, or from any one claiming the premises under him. The counter-affidavit of the tenant in this case, followed the language of the statute as above quoled, and was, in our opinion, sufficient. As we hold that the administrator, as the representative of the owner, and for certain legal purposes himself the owner, may make the original affidavit, and commence the proceeding, it follows that the tenant may treat him as owner, in the counter-affidavit, and he has no right to complain. The affidavit, in this case, states not only that the tenant does not hold by lease, etc., from said Ronaldson, (the administrator,) but that she does not hold from any one under whom he claims the premises. This is all the statute requires. We think the Court erred in dismissing the affidavit of the tenant, and in ordering the sheriff to put the administrator in possesson. The issue, made up by these affidavits, should have been submitted to a jury, as required by law. Judgment reversed.