McKissack v. Bullington

Harris, J., delivered the opinion of the court. The plaintiff in error instituted proceedings for unlawful detainer against defendant, for the possession of a town lot, under the statute. A trial was had before the justices and jury, and verdict rendered for plaintiffi An appeal was taken to the Circuit Court, and there a trial was had and jury and verdict for defendant; and the case is prosecuted here by writ of error. , The assignment of errors relates to the charges given and refused, and the refusal to grant a new trial. The record shows that the plaintiff in error, by verbal contract,sold the lot in question to one Albert Bullington, who went into possession, but never paid any money or in any manner complied with ■said verbal arrangement. That said A. Bullington, plaintiff’s tenant or vendee, contracted with one Batten for the erection of a stable on said lot. That after the completion of the work, Patten failing to collect his money of A. Bullington, commenced proceedings in the Circuit Court of De Soto county to enforce his mechanics’ lien. Judgment was obtained, execution issued, and the lot sold by the sheriff to one Erazee, who sold to defendant, E. Bullington. Plaintiff, within the time limited by the statute, commenced this proceeding, after having demanded payment, and upon refusal, demanded possession of the premises. Upon this state of facts,, the court was requested by the plaintiff to charge the jury : That if the defendant claims the lot in controversy by title derived from Albert Bullington, and that Albert Bul-lington went into possession of said lot under a parol contract with plaintiff, that he would make him a deed therefor whenever said lot was paid for by him; and that plaintiff demanded payment of the [538] purchase-money, due on said contract, from defendant, who refused to pay the same; and that plaintiff thereupon declaredsaid contract at an end, and demanded possession of said' lot; and on the refusal of defendant to deliver him possession of said lot, brought this suit of unlawful detainer within three years after this refusal of defendant to comply with said contract, then they will find for plaintiff. This charge was refused. We think it was a correct statement of the law under the facts appearing in the record; or at least it was quite as favorable to the defence, if not more so, than the rules of law require. The defendant requested the court to instruct the jury, “ that the action of unlawful detainer can only be maintained where there exists between the parties the relation of landlord and tenant, or of vendor or vendee. And that unless the jury believe, from the evidence, that there was a contract between the parties to pay and receive rent, the relation of landlord and tenant cannot exist. And that unless the contract for the sale of land is in writing, it cannot create the relation of vendor and vendee so as to enable the vendor, on refusal of the vendee to comply with his contract, to bring an action of unlawful detainer.” This instruction was given, and is clearly erroneous. In the first place, it is not true as a legal proposition, either that' the actual relations of landlord and tenant or of vendor and vendee should exist, to entitle the plaintiff to this proceeding under the statute. The owner of land, though in the constructive possession of it, may maintain his action for forcible entry and unlawful detainer against a party who peaceably enters the premises and detains the possession from him without his consent. Wilson v. Pugh, 32 Miss. R. 196. Nor is it necessary that there should be a contract to pay and receive rent to create the relation of landlord and tenant: one holding at will or by sufferance, is a tenant.; and he of whom the possession is held, is in law the landlord, in the absence of any contract to pay rent, or even where it is understood between the parties that no rent is to be paid. Nor is it necessary, in all cases, that the contract for the sale of land should be in writing to constitute the relation of vendor and [539] vendee. As when the vendor holds the vendee’s note for the payment of the purchase-money, the vendee being in possession, and the vendor willing to execute title, here the relation of vendor and vendee not only exists, but the vendee may be compelled to pay the purchase-money. See Lewis v. Hutchins, 8 S. & M. 328, and cases there cited. Let the judgment be reversed, and cause remanded, and a venire de novo awarded.