A obtained possession of premises occupied by B, by force, in B's absence, and in A's absence B soon after repossessed himself thereof by like violence. Held, that A's temporary occupation was not such quiet and peaceable possession as would enable him to maintain forcible entry and detainer under the Revised Statutes. Harrington . Scott, 1 Mich. 17.

In an action of forcible entry and detainer, the plaintiff, to recover, must show an actual peaceable possession of the premises; and a mere constructive entry, such as the fee-simple title draws to it, is not sufficient. McCartney v. McMullen, 38 Ill. 237.

1. Tivnen v. Monahan, 18 Pac. Rep. (Cal.) 144; Jones v. Shay, 50 Cal. 508; Barlow v. Burns, 40 Cal. 351; Emsley v. Bennett, 37 Iowa, 15, Stephens v. McCloy, 36 Iowa, 659; Neely v. Butler, 10 B. Mon. (Ky.) 48; Powell v. Davis, 54 Mo. 315; King v. St. Louis, etc., Co., 34 Mo. 34: People v. Field, I Lans. (N. Y.) 222; People v. Leonard, 11 Johns. (N.Y.) 504; Burt v. State, 3 Brev. (S. Car.) 413; Davidson v. Phillips, 9 Yerg. (Tenn.) 93; s. c., 46 Am. Dec. 393; Olinger v. Shepherd, 12 Gratt. (Va.) 462. Compare Tucker v. Phillips, 2 Metc. (Ky.) 416; Wood v. Phillips, 43 N. Y. 152; Hightower v. Fitzpatricks, 42 Ala. 597.

The Gist of the Action.-When the plaintiff had peaceably occupied premises for several weeks, and is dispossessed by force without process of law, by defendant, it is not material, in a proceeding for forcible entry and detainer, whether the plaintiff was originally a trespasser, or that defendant may have a legal right to the possession. The gist of the proceeding, under the statute, is forcible entry and ousting plaintiff from a peaceable possession contrary to law. Greely v. Spratt, 19 Fla. 644.

2. Bradley v. West, 60 Mo. 59; De Graw v. Prior, 53 Mo. 313; Johnson v. Hoffman, 53 Mo. 504; Miller v. Northup, 49

Mo. 397.

In an action for forcible entry, in order to constitute possession in the plaintiff, it is not necessary that he should stand

upon the land, or keep servants or agents there; but any acts done by himself on the premises, indicating an intention to hold possession, is sufficient. Bartlett v. Draper, 23 Mo. 407.

While to entitle plaintiff to maintain forcible entry and detainer, his possession must have been actual, any overt act indicating dominion and a purpose to Occupy will satisfy this requirement. Willis v. Stevens, 24 Mo. App. 494.

Landlord Taking Possession. - The owner of premises had leased them for one year, and, at the expiration of the term, went to the farm, and carried there a load of goods, and the tenant carried them up stairs into a room, and stated that he rendered up possession, and the landlord performed some acts preparatory to occupying the house, and left with the intention of returning on the following Monday, and had a deed for the whole premises, held, that this showed a sufficient possession of the premises to enable the landlord to maintain forcible entry and detainer against one taking forcible possession before his return. Huftalin . Misner, 70 Ill. 205.

Intention. In an action of forcible entry and detainer, proof that plaintiff entered upon the land and ploughed a few furrows across a portion of it. does not make out such a case of actual possession on his part as to warrant a ver dict in his favor. Something more is necessary, showing an intention to possess, accompanied with acts indicative of that purpose. The visiting and looking after, and superintending of unoccupied land are acts going to show such intent. Edwards v. Cary, 60 Mo. 572.

Nocturnal Entry.-" Peaceable possession " cannot be based upon a nocturnal entry upon premises used and improved at the time and for several months previously, under claim of title and with the intruder's knowledge. Newton v. Doyle, 38 Mich. 645.

A entered on some wild land, remained there two days, cleared a small portion from brushwood and timber, and left. During his absence B took possession and began the erection of a substantial

port a verdict. Bradley v. West, 60 Mo.

59.

A continuous presence is not essential, if there is intent to occupy. Miller v. Northup, 49 Mo. 397.

Erecting half a cabin and deadening tree, without occupying the land, are not sufficient evidence of possession to main tain the action. Pennsylvania v. Lemmon, Add. Pa. 315.

Holding Land and Fencing It in is such possession as will support an action for forcible entry and detainer, even if the possession be acquired unlawfully; and the fences being swept away by water, any act indicating an intention to hold the possession will give the actual posession. King v. St. Louis, etc., Co., 34 Mo. 34.

One claiming a vacant lot, enclosed the lot by building a fence joining with another fence, and a brick wall, sufficient to keep out domestic animals, and informed all persons that the premises were appropriated. Held, that this was sufficient actual possession to maintain forcible entry and detainer against parties breaking down and destroying the fence in a forcible manner under claim of ownership. Allen v. Tobias, 77 Ill. 169.

Where one entered peaceably upon a vacant lot, under a bona fide claim of title, and enclosed the lot with a wire fence, held that this was actual possession, and that an entry by another in his absence, destroying the fence and refusing to surrender possession on demand, was a forcible entry and detainer within Kan. Comp. L. 727, § 158. Campbell v. Coonradt, 22 Kan. 704.

Building a few rods of fence, cutting some brush, or ploughing a few furrows, will not constitute such possession as to enable plaintiff to maintain forcible entry and detainer against a tenant who has been in possession for more than one year under a written lease from one who claimed adversely to plaintiff. Gallagher v. Connell (Neb.), 36 N. W. Rep. 566.

Fences are not necessary to a peaceable and actual possession of the land; neither is a residence. Valencia v. Couch, 32 Cal. 339. Compare Pa. v. Lemmon, Add. Pa. 315; Wilbur v. Cherry, 39 Cal. 660

Possession of Vendee.-A purchaser of lands at a sale under a mortgage or deed of trust, who has never had actual possession, cannot maintain an action of unlawful detainer for their recovery. Womack v. Powers, 50 Ala. 5.

A removal from the house by the vendor thereof, and delivery by him of the

keys to the vendee, with the intention of giving him possession, gives a sufficient possession to the vendee to support an action of forcible entry and detainer by him. Hoffstetter v. Blatner, 8 Mo. 276.

Possession of Landlord.-Under the statute in relation to forcible entry and detainer, after the termination of a tenancy, there is in the landlord such a possession, or right of possession, as will sustain this action against the tenant, or a trespasser, without a formal re-entry. Wall . Goodenough, 16 Ill. 415.

A., tenant of land under P., yielding to the wrongful demand of J., and the sheriff, without being ejected, attorned to J., suppossing that J. was entitled to the possession under a certain writ, which in fact gave him no such right. Held, that J. acquired no possession thereby which would enable him to maintain forcible entry and detainer against P. for taking possession of the land. Beaty v. Jones, 1 Coldw. (Tenn.) 482.

A landlord who becomes entitled to the possession of premises by the determination of a lease under an arrangement with his tenant, cannot maintain a proceeding for a forcible entry and detainer for an entry made while the tenant was in possession. McKeen v. Nebus, 9 Ala. 507; Hays v. Porter, 27 Tex. 92.

An agreement to occupy, to take care of, and purchase, when the tenant is able, is not a tenancy subject to forcible entry and detainer. Reeder v. Bell, 7 Bush (Ky.), 255.

Surveying, Marking, and Staking.Where the plaintiff shows no deed, or other color of title, the fact that he had made a partial survey of the lands, running certain lines, but without staking off the land, is not sufficient proof of actual possession; and the fact that he had given permission to other persons, on several occasions, to burn lime on an undescribed portion of the lands, with wood obtained elsewhere, is not sufficient to show actual possession of any particu lar part of the land; but a recovery may be had for the portion of land covered by an uncompleted log house, on proof that it was erected by a workman employed by him, notwithstanding a temporary suspension of the work before the completion of the house. Clements v. Hays, 76 Ala. 280.

Where plaintiff, who had no color of title, simply ran certain lines without staking off the land, and gave permission to several persons on different occasions to burn lime on undescribed portions of the land, held, that there was no evidence of sufficient possession for him to main

tain forcible entry and detainer, but that he could recover for a portion of land covered by an uncompleted log house erected by a workman employed by him. Clements v. Hays, 76 Ala. 280.

Where defendants in unlawful detainer had been in continued uninterrupted possession of the lot in controversy for four years, held, that plaintiff's entry on the lot, which had been enclosed, and putting up posts, was not such a taking possession as entitled her to bring the action within two years thereafter. Hays v. Altizer, 24 W. Va. 505.

On or about the day that defendants began to use lots, that had been vacant a long time, as a stone-yard, plaintiffs erected about them a fence, which was within forty-eight hours removed and another fence built by defendants. Held, that the building of a fence by plaintiffs was not such a possession as would support an action for forcible entry and detainer. Dyer v. Reitz, 14 Mo. App. 45.

A survey by a claimant of a lot of land, the staking of the corners, the putting up of boards with the inscription, "keep out," the piling of lumber upon it, and the grading of it for building purposes, is such a possession of it as will enable him to maintain an action for forcible entry and detainer against an adverse claimant who suddenly interrupts that possession. St. Louis Agricultural, etc., Asso. V. Reinecke, 21 Mo. App. 478.

Limitations in Missouri.-Plaintiff cannot recover in an action of forcible entry and detainer who has not been in possession for three years prior to the institution of his suit. Such an action has nothing to do with the title to land. Mil. ler v. Tillmann, 61 Mo. 317.

An actual inclosure of the premises by the plaintiff, or those under whom he claims, or other evidence of possession, at or within five days of the date of the alleged entry of defendant, must be shown in order to maintain an action for forcible or unlawful entry and detainer. Wilbur v. Cherry, 39 Cal. 660.

Possession by Agent.-Proof that the property in question is in the management of an authorized agent of the plaintiff, who rents and takes charge of it, although without a power of attorney, is sufficient evidence of possession to support a suit of forcible entry and detainer in the name of the principal. Minturn 7. Burr, 16 Cal. 107.

Where a sheriff, in executing a writ of hab. fa., delivered the possession of the premises to the plaintiff's agent, held to be both in law and in fact the possession of the plaintiff, and he may maintain a

warrant for a forcible entry upon such possession. Higginbotham v. Higginbotham, 10 B. Mon. (Ky.) 369.

Plaintiff was in possession, through his servant and employee, of the premises in question, when the defendants, after entering peaceably thereon, forcibly ejected the servant therefrom. Held, it was not necessary that plaintiff should be there in person; the employee's possession was that of the employer; it does not require the actual personal presence of the employer to constitute possession in him. Baker v. Dickson, 62 Cal. 19.

servants are

There may be a forcible entry where a person's wife, children, or upon the lands to preserve the possession, because whatever a man does by agents is his own act; but his cattle being upon the ground do not preserve his possession, because they are not capable of being substituted as agents; and therefore their being upon the land continues no possession. I Russ. on Cr. (9th Am. Ed.) 425.

Possession under Void Writ.—In a proceeding under the Florida act of 1868, relating to forcible entry and unlawful detainer, the plaintiff claimed that he was lawfully put into possession of the premises by virtue of a writ of possession, issued in a former similar proceeding against the husband of one of the appellants. On the trial the writ of possession and the proceedings in the former case being produced, it appeared that no judgment had been entered therein. Held, that the writ of possession was void, and did not give the plaintiff a lawful possession, or right of possession; and the defendant. having re-entered without force or violence, was not guilty of an unlawful entry. Stark v. Billings, 15 Fla. 318.

Possession under Contract.-On indictment for forcible entry of a dwellinghouse, it appeared that the prosecutor took possession of the house under a contract with one of the defendants, in consideration of labor performed, that he should occupy the house for one year, and that he did occupy the house under the contract until driven out by threats, and the exhibition of a deadly weapon by defendants. Held, that the prosecutor's possession was sufficient to lay a foundation for the commission of the crime charged. State v. Smith (N. Car.), 6 S. E. Rep. 84.

Although one who contracted to erect a building on the land of the latter was in the peaceable occupancy of the prem ises for that purpose, yet if he asserts and maintains possession to the exclusion

of the owner, he may be removed and fined under $3360 R. S. Platteville v. Bell, 66 Wis. 326.

Where the testimony shows that the defendant is in possession under a contract for title, the action should be dismissed. Dawson v. Dawson, 17 Neb. 671; Keller v. Klopper, 3 Colo. 132; Nightingale v. Barens, 47 Wis. 389; Sims v. Humphrey, 4 Denio (N. Y.). 185; Hays v. Connelly, I A. K. Marsh. (Ky.) 291; McCombs v. Wallace, 66 N. Car. 481. The vendor of lands cannot maintain an action of unlawful detainer against a purchaser, who, having originally entered as tenant under a lease, which was afterwards abrogated, has continued in possession under an executory agreement for the purchase of the lands, and has failed to comply with the stipulations of said contract, whereby he has forfeited all rights under it. Alderman v. Boeken, 25 Kan. 658. And see Peeder v. Bell, 7 Bush (Ky.), 255.

Payment of Taxes and Acts of Ownership. -Proof of title in plaintiff, with payment of taxes and acts of ownership, without showing that such acts of ownership were also acts of possession, is not evidence of peaceable possession. McCartney v. Alderson, 45 Mo. 35.

In actions under the Missouri statute respecting forcible entry and detainer, proof of title in the plaintiff, with payment of taxes and acts of ownership merely, is not evidence of peaceable possession. But it is not necessary to be always on the land, provided the occupa tion of the owner is intended to be permanent. Miller v. Northup, 49 Mo. 397. Exercising Control of Another's Land. Where the widow and her son, the only heir of one who died seized of land, continued in possession thereof for twentyeight years after the death of the owner, dower never having been assigned, and no claim made thereof by the widow, and the son exercised entire control over the land, and worked it as his own, held, that it would be presumed that the mother lived there as a member of her son's family, and not under claim of dower, and that the possession of the son was such as to enable him to maintain forcible entry and detainer against an intruder. Thompson v. Sornberger, 78 Ill. 353.

A father erected a barn on his lot, and allowed his son to occupy and use the same in common with himself for many years, without any rent or contract respecting the same, and the son finally took exclusive possession thereof, and kept the owner out of the same. Held, in an action of forcible entry and detainer,

by the father against the son, for possession, that the plaintiff was entitled to recover. Dunstedter v. Dunstedter, 77 Ill. 580.

No surrender short of an actual deliv ery of premises to the landlord warrants a forcible ejectment. Flaherty v. Andrews, 2 E. D. Smith (N. Y.). 529.

Occupant of Rooms in Another's Dwelling. -The proprietor of a school employed a person as steward and servant in the establishment, and assigned for his lodg ing rooms a house situated within the curtilage, but not connected with the dwelling-house of the proprietor by any common roof or covering, and for which lodging rooms the steward paid no rent. Held, that the house occupied by the steward was not, in law, his dwellinghouse, but was the dwelling-house of the proprietor of the school, and that no indictment would lie against the proprietor for an entry and expulsion of the steward from such house, provided there was no injury to his person or other breach of the peace. State v. Curtis, 4 Dev. & B. L. (N. Car.) 122.

In California, under Code Civil Proc.

1160, which provides that the action of forcible entry will lie where plaintiff has been in peaceable and undisturbed possession" for five days preceding such entry, when defendant came to plaintiff on the evening of the day the latter took possession, and wanted to know by what authority he was there, but no hostile demonstrations were made, plaintiff's possession is sufficient to enable him to bring the action. Bank of California v. Taaffe et al., 18 Pac. Rep. (Cal.) 781.

Retaining Possession. — Locking the doors of a house and keeping the keys, closing the windows and driving a portion of the stock upon the premises, constitute evidence of an actual possession of land, which will authorize a recovery in forcible entry and detainer. Davidson v. Phillips, 9 Yerg. (Tenn.) 93. Compare Hopkins v. Buck, 3 A. K. Marsh. (Ky.)

IIO.

T., who for nearly ten years had not had possession of the house, unlocked the door, entered under claim of ownership during the temporary absence of R., who had meanwhile had interrupted possession, and a part of whose furniture had been removed, locked and nailed up the house, and retired, leaving his coat and pocket-book within. Held, that T. had no such possession as would support an action for forcible entry against a tenant of R. Wray v. Taylor, 56 Ala. 188.

When the owner of an unfurnished livery stable could not agree with one