Emsley v. Bennett

Miller, J. The court, against appellant’s objections, permitted the defendant to amend his answer and give evidence to the jury to the effect that in a conversation between the parties the plaintiff stated that he did not claim to have any interest in the property; that, relying upon this statement, the defendant purchased the same of the owner thereof and took possession under such purchase; also evidence, under. the amended answer, tending to show that plaintiff’s prior possession was as agent for the owner and not in his own right. The court also instructed the jury, at the request of the defendant, as follows: “ If the plaintiff, with knowledge that the defendant contemplated purchasing the premises in question, told the defendant or his agent that he, plaintiff, had no claim or interest in said premises, and if the defendant purchased the premises in good faith, relying on said statements, the plaintiff is [17] now estopped from asserting against defendant any claim or interest therein inconsistent with the statements so made.” In allowing the amendment to the answer, in the admission of the evidence, and in giving this instruction there was error. In this action the question of title or right of possession is not involved and cannot be tried. The facts of actual possession by the plaintiff, and an entry by force, fraud or stealth, or an unlawful detainer by the defendant are the only ones to be determined — and they alone are the matters in issue irrespective of the ownership or right of possession. It is immaterial, also, in what capacity or relation the plaintiff is in possession, whether as owner, tenant, agent, or as a mere trespasser. It is the fact of possession alone that is material. A person 'may render himself liable to an action for forcible entry and detainer, by entering upon his own premises even when he has the right to immediate possession. Settle v. Henson, Morris, 111; Lorimer et al. v. Lewis, id. 253. The only proper issues to be tried in the case were: 1. "Was the plaintiff in the actual possession of the premises; 2. Did the defendant enter upon such possession by force or stealth; and to these issues the evidence should have been confined, and upon these issues alone the jury should have been instructed. The judgment of the circuit court will, therefore, for the errors above noticed, be Reversed.