Lomax v. Spear & Thomason

BRICKELL, J. In the absence of statutory provisions, after the expiration of a tenancy by its own limitation, the landlord’s right of possession becomes complete, and he may at once exercise it by a peaceable entry upon the premises. If the tenant refuses peaceably to quit, the landlord must not resort to force, but must invoke a legal remedy. The common534 law remedy was by an action of ejectment. Taylor on Landlord and Tenant, § 698. In such action, damages, or the value of the use and occupation of the premises during the continuance of the tortious holding, were not recoverable. A subsequent action of trespass quare clausum, fregit, after the recovery in ejectment, was the only remedy. Sedgwick on Damages, 181. The common-law remedies were dilatory, subjecting the landlord to inconvenience and injury, and inducing tenants‘to disregard the fealty due the landlord. To heal these defects in the common law, a summary remedy is provided by our statutes for the expulsion of the tenant. It is declared, an unlawful detainer is when one has lawfully entered into possession of lands or tenements, and refuses, after the termination of his possessory interest, to deliver, on demand in writing, possession to any one lawfully entitled thereto. R. C. § 3300. The remedy prescribed is a proceeding before a justice of the peace, and is summary. R. C. §§ 3302-10. An appeal to the circuit court from the judgment of the justice is authorized. If the appeal is taken by the defendant, the execution of the writ of restitution is not suspended, unless he gives bond with sureties, in the penalty of twice the value of the yearly rent of the premises, conditioned to pay the plaintiff all such damages as he may sustain by the prosecution of the appeal. If the judgment of the justice is affirmed, the circuit court must render judgment against the appellant and his sureties, for the value of the rent of the premises pending the appeal. R. C. §§ 3314-16. 6. A dischai-ge in bankruptcy is not pleadable in an action ex delicto, unless, perhaps, in an action for the wrongful taking or conversion of personal property. The form of the action is the decisive test of the propriety of the plea. Goodtitle v. North, Douglass, 562; Williams v. Dickens, 5 Iredell (Law), 259; Kellogg v. Schuyler, 2 Denio, 73. In Goodtitle v. North, supra, the action was trespass for mesne profits, and a plea of bankruptcy was interposed, and held bad, Lord Mansfield saying, that the form of action is decisive. The statutory proceeding for an unlawful detainer is but a substitute for the common-law remedy by ejectment. The right to recover rent accruing, pending an appeal, is intended to avoid the multiplicity of suits, and the delay in the enforcement of the right, which was consequent upon the common-law remedy of trespass quare clausum, for mesne profits. The statute works no change in the character of the plaintiff’s cause of action, nor in the nature of the defendant’s liability. The holding over, after the expiration of the tenancy, is not under any conti’act, but in violation of the contract under which [535] the tenant entered. It is not by the permission of the landlord, for he warns the tenant to quit, by notice in writing. The tenancy is dissolved ; the contract creating it has expired ; the subsequent holding by the tenant is of his own wrong, in defiance of the right of the landlord; and when he is compelled to resort to a legal remedy for the ouster of the tenant, the cause of action has every element of tort, and not one of contract. The damages which may be recovered on appeal, as incidental to the affirmance of the judgment in favor of the plaintiff, is the value of the use and occupation pending the appeal, and are the mesne profits, which would otherwise be recoverable only in trespass. To the statutory action, bankruptcy is not a defence. The action is for a tort, — is ex delicto, not ex contractu. The circuit court erred in not sustaining the demurrer of appellant to the appellees’ plea of bankruptcy; and for that error, the judgment is reversed, and the cause remanded.