Gibson v. Tong

Scott, Judge, delivered the opinion of the court. This was a writ of forcible entry and unlawful detainer brought by the plaintiff Gibson against the defendant Tong. [134] The cause was taken by certiorari from the justice to the circuit court, where the plaintiff had judgment. The sixteenth section of the act concerning forcible entries and unlawful detainers directs that when the jury is sworn the justice shall cause the complaint to be read to them, and then call upon the plaintiff for proof to sustain the same; but the complainant shall not be compelled to make further proof of the forcible entry or detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained or unlawfully detained the same. This section has never been so construed as to require the plaintiff to show any title in himself. A mere title in this proceeding avails the plaintiff nothing unless it is accompanied with the possession. He may have the legal title, and yet be guilty of an unlawful entry. The statute merely means that the plaintiff shall have the peaceable possession of the premises at the time of the unlawful entry. If he has that, he can not be turned out unlawfully or by force, but only by due course of law. The instructions given by the court were erroneous, as there was no evidence to support them. The only fact in the record which had the least tendency to show that the plaintiff was possessed, was the direction of Reed (who last had the possession of them) to his tenant Palmer, to pay the rent to the plaintiff. Palmer, it seems, had only a portion of the premises, and the court assumes that the keys of the other tenements not possessed by Palmer were delivered to the plaintiff. Nothing is stated in the record in relation to this delivery of keys to the plaintiff. Of course, then, there could be no authority for the court to assume the existence of such a fact in an instruction. But if there was a direction to Palmer to pay the rent to the plaintiff, and a delivery of keys as assumed, these were circumstances from which the jury would have determined whether the plaintiff was in the possession of the premises, and it was not for the court to intimate to them that as a matter of law they constituted a possession. Judgment reversed and the cause remanded; the other judges concur.