O'Donohue v. Holmes

COLEMAN, J. The appellant sued the defendant in an action of unlawful detainer, to recover possession of a vacant lot. In this action there can be no enquiry into the merits of the title. — Code 1886, § 3389. Consequently the court did not err in excluding the deed offered in evidence by the plaintiff. The only question for consideration is, whether plaintiff offered any evidence tending to show such previous actual possession as must have existed to maintain the action of unlawful detainer. The only evidence is, that an agent of the plaintiff went upon the the vacant unenclosed lot about once a week for some months prior to its enclosure by the defendant, and on several occasions showed the lot to different parties, to whom he offered to sell it as the property of the plaintiff. There were no notices upon the lot, nor any sign, evidencing actual possession of, or claim by, the plaintiff or otluT person to the lot. The possession of the plaintiff by his agent, as shown in the record, however long continued, could never ripen into a legal title, on the ground of an adverse actual hostile possession against the true owner. To support the action of unlawful detainer, where the entry was peaceable, as provided in the Code, section 3380, and there was no such relation between the parties as prohibited the defendant from controverting the plaintiff’s previous possession, the plaintiff must show more than a mere previous constructive possession. He must show such actual possession, as that if continued for the necessary period, the possession would vest in him a legal title against the true owner, if there was such title outstanding. When the plaintiff can not show such actual possession his remedy is in ejectment, and not in unlawful detainer. [493] The court did not err in giving the affirmative charge for the defendant. Affirmed.