Paden v. Gibbs

Calhoon, L, delivered the opinion of the court. This is a proceeding under Code 1892, ch. 142, on “Unlawful Entry and Detainer,” in which proceeding the plaintiff describes the land as being in section 2. The defendants entered a disclaimer of any possession at any time of the land described. It is urged that, although the affidavit describes the land as being in section 2, still it is enough that, after careful description, it proceeds: “Being the same land that was in the possession of W. B. Henderson, tenant of J. T. Gibbs, up to the 26th day of May, 1903, when the said Henderson was turned out of possession of said land by the above named,” etc. .We cannot take this view. The record must be so certain that the sheriff could go to the land from the description there to be seen. He could not do this in section 2, and he could not act on inquiry dehors the record. This being a possessory action only, title is [277] not involved, of course; but surveys and proof of occupation are admissible merely to show location, and that the land occupied was not that the possession of which is claimed, but in a wholly different section. We do not agree with appellants that, if the claim be proved in correspondence with the description, still it must fail because of lack of “force, intimidation, fraud,” etc., under the statute. An entry against the will of him in possession is sufficient to warrant the proceeding. Whether there was agreement to the entry is for the jury to settle on the evidence. Reversed and remanded.