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2. Abandonment of Possession.-Where the lands and tenements have been abandoned the action cannot be sustained.1 But it must have been more than a mere temporary abandonment; it must be accompanied by an intention not to return; and mere lapse of time is not conclusive upon the question of such intention, though properly considered as bearing upon it.2

seeking to rent it, and, after the time when the proposed lease was to go into effect, rented it to another, who went into possession, the proposed lessee does not acquire the right to maintain action against the party so entering for unlawful entry and detainer, by hitching horses in the unfurnished stable. Blake et al. v. McCroy. 4 So. Rep. (Miss.) 339.

Using a Way by the Owner of an Easement Therein, is not equivalent to possession, on which a claim requiring possession as a predicate may be based. Lachman v. Barnett, 10 Fev. 269.

In order to constitute a forcible entry, the possession must be quiet, peaceable, and actual, and the entry accompanied by actual force and intimidation; and unless such possession and such entry are established, surety of the peace cannot be granted against further repetition. Commonwealth v. Keeper of Prison, I Ashm. (Pa.) 140.

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Peaceably. The word "lawfully in the statute is equivalent to peaceably.' Beeler v. Cardwell, 29 Mo. 72; s. c., 77 Am. Dec. 550; McCartney v. Alderson, 45 Mo. 39.

Husband and Wife.--Where the plaintiff and his wife resided together on the premises, and he deserted her, leaving her in the actual occupancy, her possession is presumed (unless the contrary affirmatively appear) to be possession under and in his right, so that the action may be brought by her in his name. Davis v. Woodward, 19 Minn. 137.

1. Laird v. Waterford, 50 Cal. 315; De Graw v. Prior, 60 Mo. 56; Hodgkins v. Price, 132 Mass. 196; Mounger v. Burks. 17 Ala. 48.

2. Mitchell v. Carder, 21 W. Va. 277. One's mere removal of his goods from the premises is not an abandonment of his possession, and if such possession be lawful, although only that of tenancy by sufferance, he may maintain an action of forcible entry against any party entering against his will. Knight v. Knight, 3 Ill. App. 206.

A party having purchased a piece of wood land, entered upon it, built a logcabin, made rails, etc., and left it for a temporary purpose, and was absent about two weeks, leaving his tools in the cabin,

intending to move into it in a short time. During his absence, another party, who had rented the land from another claimant, went to it, completed the cabin, inclosed it with a fence, made a door to the cabin, and locked it up, with some articles of his own in it, and went away. The first party finding the place on his return as the other had left it, resumed and retained possession, and the other brought an action of forcible entry and detainer against him. Held, that the defendant's acts did not show any abandonment of the possession; that his possession continued during his temporary absence, and that he was not ousted by the entry and acts of the plaintiff, which were trespasses. Haley v. Palmer, 9 Dana (Ky.), 320.

Refusal to complete Purchase.—Where a vendee leased lands to his vendor for a term, and at the expiration of the term refused to take possession, declaring that he would not abide by the purchase, he cannot maintain forcible entry and detainer against a stranger who entered on the abandonment of the vendor. McCracken v. Woodfork, 3 A. K. Marsh. (Ky.) 524.

Building Destroyed by Fire.-A, the owner of land with a building thereon, leased the premises to B, and during the term the building was destroyed by fire, and B wholly abandoned the actual use and occupation of the estate, which was then conveyed by A to C, who erected a new building thereon, and leased it to several tenants. B contended that he had a right of possession under his lease, and, before the execution of the new building, assigned the lease to D, who, several years afterwards, but during the term of the lease, with the assistance of several men, at an unreasonable hour in the morning, forcibly entered the building and took possession thereof, but was ejected therefrom by the tenants upon their arrival. D then brought an action for forcible entry and detainer against C, under Mass. Gen. Stat. ch. 137. Held, that the same could not be maintained. Hodgkins v. Price, 132 Mass. 196.

The mere act of nailing up the doors of a house does not amount to retaining possession. Hopkins v. Buck, 3 A. K.

Marsh. (Ky.) 110. See Davidson v.
Phillips, 9 Yerg. (Tenn.) 93; Wray v.
Taylor, 56 Ala. 188.

If one leaves his dwelling-house for merely a temporary purpose in charge of a member of the family, he cannot, in law, be said to have quit the possession so as to make the unlawful entry of a trespasser an entry in his absence. State v. Sheperd, 8 Ired. L. (N. Car.) 195.

Relinquishment of Contract of Sale.-A entered a complaint against B for an unlawful detainer, in which he alleged that C purchased certain lands from D, and leased them for a term of years to B; that before the expiration of the lease B died without having divested himself of the title, and that C thereupon rescinded the contract with his administrator, and relinquished all right or claim to the lands, of which B was informed, and to which he consented and agreed; and that the administrator then sold the lands under an order of the orphans' court, at which sale A became the purchasers.

Held, 1st. That C, never having been the tenant of D or his representative, the possession of B cannot be regarded as by, from, under, or in collusion with " C as tenant.

2d. That the allegation that B was informed of, and consented and agreed to, the rescission and relinquishment of B, is not the averment of the fact of tenancy, but merely of a circumstance from which it might be inferred, and is therefore insufficient.

3d. That if the relinquishment of C could operate to pass his estate or right, it created a new estate or right in D's administrator or heirs, the sale of which the orphans' court had no power to direct. Mounger v. Burks, 17 Ala. 48; Botts v. Armstrong, 8 Port. (Ala.) 57; Hardisty v. Glenn, 32 Ill. 62; Vanhorn v. Tilley, 1 T. B. Mon. (Ky.) 50; Prewitt v. Burnett, 46 Mo. 372; Harris v. Turner, 46 Mo. 438; Olinger v. Shepherd, 12 Gratt. (Va.) 462; Moore v. Douglass, 14 W. Va. 708.

A, holding under a junior patent, extended his fences and inclosed a part of his tract, which was occupied adversely by B under a title bond, though B did not show that his claim was connected with the elder patent. Held, that the enclosure gave a possession of so much only of the interference as it included; and that a subsequent enclosure of more of the interference was a tortious entry, for which a writ of forcible entry and detainer could be maintained. Stith 7. Jones, 7 Dana (Ky.), 434.

Act, art. 13, concerning forcible entry and detainer, may be held in all cases where defendant is a settler or occupant of land without color of title, and to which the complainant has a right of possession, although the complainant may never have had the actual possession of the land. Price v. Olds, 9 Kan. 66.

But the rule is otherwise when the party in possession is a mere intruder. In such a case the possession must be confined to the land actually occupied. Harris v. Turner, 46 Mo. 438.

Where a testator died seized of an es tate in fee, and before his devisee entered, a person who had no right, made an entry and got possession of the lands devised, and continued to hold the same without right. Held, that this made the latter an occupier without color of title," within the meaning of the Ohio statute, and that the devisee could maintain forcible detainer against him to obtain possession. Brown v. Burdick, 25 Ohio St. 260.

Where, after one had been in possession of land fors everal years, an adverse claimant entered and locked the barn and gate upon the land, and ploughed and planted the same, but the other party did not acquiesce in such acts, and resumed his possession, and leased the premises to a tenant, held, that the acts of the adverse claimant did not constitute such a possession, unless justified by a title, as would enable him to maintain forcible entry and detainer against the tenant. Cox v. Cunningham, 77 Ill. 545.

In an action of forcible entry and detainer for the possession of a tract of timber land, the plaintiff proved that he had in cultivation two tracts of land, one adjoining the timber land and the other about a mile and a half from it; the firewood for the use of both farms was cut from the timber land; that he had a deed for the timber land, and had paid taxes and cut timber on the land in dispute for twenty years. Held, that this was sufficient evidence of possession to sustain an action of forcible entry and detainer. Pensoneau v. Bertke, 82 Ill. 161.

Purchaser of Equity of Redemption.— The complainant, in an action of forcible entry and detainer, holding mortgages of the premises in controversy, consisting of a lot of land with a house on a portion of it, purchased the respondent's right in equity to redeem, at a sheriff's sale of the same on execution; and, in the temporary personal absence of the respondent, his family still being in the Proceedings under the Kansas Justices' house, the complainant entered peaceably

3. Color of Title.-Actual possession of part of a tract of land under a bona fide claim and color of title to the whole is a sufficient possession of the residue to support an action of unlawful and forcible entry and detainer against one entering on the residue. without right.

4. Pre-emption.-One who claims land by virtue of the preemption laws of the United States cannot sustain the action1 unless he has occupied or inclosed the same.

VII. TITLE, HOW FAR CONSIDERED.-The question of title cannot be tried in an action of forcible entry and detainer, the right of possession alone being involved.

and unobstructed into a possession of a part of the land, but did not enter the house; and, while so in possession, the respondent returned and expelled him by force. Held, that the action could be maintained. Dyer v. Chick, 52 Me. 350.

1. Barlow v. Burns, 40 Cal. 351; McCorkle v. Yarrell, 55 Miss. 576; Edwards v. Batts, 5 Yerg. (Tenn.) 441; Cummins v. Scott, 20 Cal. 83; Preston v. Kehoe, 15 Cal. 315; Stark v. Barnes, 4 Cal. 412.

2. Lecatt v. Stewart, 2 Stew. (Ala.) 474; Milner v. Wilson, 45 Ala. 478; Dumas v. Hunter, 25 Ala. 711; Clark v. Stringfellow, 4 Ala. 353: Voll v. Hollis, 60 Cal. 569; Dennis v. Wood, 48 Cal. 361; Hoag v. Pierce, 28 Cal. 187; Dutton v. Tracy, 4 Conn. 79; Bliss v. Bange, 6 Conn. 78; Walls v. Endel, 17 Fla. 478; Stuckey v. Carleton, 66 Ga. 215; Stuckey v. Force, 66 Ga. 215; Poulan v. Sellers, 20 Ga. 228; Slate v. Eisenmeyer, 94 Ill. 96; Thompson v. Sornberger, 59 Ill. 326; Pearson v. Herr, 53 Ill. 144; Smith v. Hollenback, 51 Ill. 223; Brooks v. Bruyn, 18 Ill. 539; Nicholson v. Walker, 4 Ill. App. 404; Wheelan v. Fish, 2 Ill. App. 447; Shoudy v. School Directors, 32 Ill. 290; Smith v. Hoag, 45 Ill. 250; Vess v. State, 93 Ind. 211; Settle v. Henson, 1 Morr. (Iowa) 111; Hunt. Wilson, 14 B. Mon. (Ky.) 44; Mansfield v. Duvall, 2 Bibb (Ky.), 582; Miller v. Tillmann, 61 Mo. 317; Prewitt v. Burnett, 46 Mo. 372; Harvie v. Turner, 46 Mo. 447; Van Eman v. Walker, 47 Mo. 169; Goerges v. Hufschmidt, 44 Mo. 179; Bell v. Cowan, 34 Mo. 251; Spalding v. Mayhall, 27 Mo. 377; Gibson v. Tong, 29 Mo. 133; Stone v. Malot, 7 Mo. 158; Boardman v. Thompson, 3 Mont. 387; Myers v. Koenig, 5 Neb. 419; Grohonsky v. Long, 20 Neb. 362; Mercereau v. Bergen, 15 N. J. L. (3 Green) 244; Younge v. Freeman, 15 N. J. L. (3 Green) 30; Allen v. Smith, 12 N. J. L. (7 Hals.) 199; Kelly v. Sheehy, 60 How. Pr. (N. Y.) 439; People v. Leonard, 11 Johns. (N. Y.) 504; Shortess v. Wirt, 1 Öreg. 90; Mc

But it is frequently necessary

Ghee v. Grady, 12 Lea (Tenn.), 89; Allison v. Casey, 4 Baxter (Tenn.), 587; Settle v. Settle, 10 Humph. (Tenn.) 504; Philips v. Sampson, 2 Head (Tenn.), 429; Black v. State, 3 Yerg. (Tenn.) 588; McNair v. Rempublican, 4 Yeates (Pa.), 326; Warren v. Kelly, 17 Tex. 544; Corbett v. Nutt, 18 Gratt. (Va.) 624; Newton v. Leary, 64 Wis. 190; Respublica v. Shryber, i Dall. (Pa.) 68; Beezley v. Burgett, 15 Iowa, 192; Kepley v. Luke, 106 Ill. 395; Winterfield v. Strauss, 24 Wis. 394; Mitchell v. Davis, 23 Cal. 381; Bowers v. Cherokee Bob, 45 Cal. 495; Emerson v. Sturgeon, 59 Mo. 404; Beeler v. Cardwell, 29 Mo. 72; Warren v. Ritter, 11 Mo. 354; Dilworth v. Fee, 52 Mo. 130; Sullivan v. Enders, 3 Dana (Ky.), 66; Herndon v. Bascom, 8 Dana (Ky.), 113; Dotson v. State, 6 Coldw. (Tenn.) 545; Gass v. Newman, I Head (Tenn.), 136; McLean v. Spratt, 20 Fla. 515; Turnley v. Hanna, 82 Ala. 139; Snoddy v. Watt, 9 Ala. 609; Cummings v. Kilpatrick, 23 Miss. 106; Rabe v. Tyler, 10 S. & M. (Miss.) 441; State v. Pollok, 4 Ired. (N. Car.) 305; s. c., 42 Am. Dec. 140; Dustin v. Cowdry, 23 Vt. 631; Hildreth v. Conant, 10 Metc. (Mass.) 298; Carter v, Newbold, 7 How. Pr. (N. Y.) 166; People v. Van Nostrand, 9 Wend. (N. Y.) 50; Porter v. People, 7 How. Pr. (N. Y.) 441; People v. Fields, I Lans. (N. Y.) 222; Wells v. De Leyer, I Daly (N. Y.), 39, Barto v. Abbe, 16 Ohio, 408.

The Florida Act of 1849, for the relief of occupying claimants who improved lands belonging to another, supposing them to be their own "by reason of a title in law or equity," does not apply to a proceeding under the act of 1848, as to forcible detainer. The latter determines only the right of present possession, and does not involve the title of either party. Mountain v. Roche, 13 Fla. 581.

In McCauley v. Weller, 12 Cal. 500, the court said: "The action of forcible entry and detainer is a summary proceeding to recover possession of premises forcibly or

unlawfully detained. The inquiry in such cases is confined to the actual, peaceable possession of the plaintiff and the unlaw ful or forcible ouster or detention by defendant-the object of the law being to prevent the disturbance of the public peace, by the forcible assertion of a private right. Questions of title or right of possession cannot arise; a forcible entry upon the actual possession of plaintiff being proven, he would be entitled to restitution, though the fee-simple title and present right of possession are shown to be in the defendant. The authorities on this point are numerous and uniform."

Simple possession is sufficient evidence of title to enable the occupant to maintain the action. People v. Fields, Lans. (N. Y.) 222; Dotson v. State, 6 Coldw. (Tenn.) 545.

In an action of forcible entry and detainer, if the defendant entered forcibly, he cannot show his right to the possession of the land, but he must give up his forcible possession, and he will then be in a position to litigate, in a proper action, any valid title he may have. Mitchell v. Davis, 23 Cal. 381.

The defendant cannot show an equitable title in himself to the premises. Taylor v. White, 1 T. B. Mon. (Ky.) 37.

In an action of forcible entry and detainer where plaintiff had been in possession for the period required by statute to enable him to bring the action, and the eourt refused to admit documents showing title in plaintiff as bearing on defendant's good faith, but received them to show that defendant's title had been transferred to plaintiff, no injury could have been produced by this admission for that purpose, as no finding was made upon the subject of title. Bank of California v. Taaffe et al., 18 Pac. Rep. (Cal.) 781.

Title as a Defence. In a case of forcible entry and detainer, a defendant cannot set up a title in himself, and rely on that as a defence. Altree v. Moore, 1 Oreg. 350; Bliss v. Bange, Conn. 78.

In forcible entry and detainer, the defendant is precluded from setting up that the complainant's title is not such as he has set forth in his complaint. Drake v. Newton, 23 N. J. L. (3 Zab.) III; Allen v. Smith, 12 N. J. L. (7 Hals.) 199.

A suit for forcible entry and detainer cannot be maintained under the Code, where the defendant pleads a title paramount, nor can the question of title be in vestigated in this form. Bosworth v. Farrenholtz, 4 Greene (Iowa), 440.

A was in possession of certain premises, as tenant-at-will of B, who claimed title under C. D levied an execution against

C on the premises, alleging that the deed to B was void. Held, that the process of forcible entry and detainer under Rev. Stat. ch. 104, would not lie by D against A, the question of title not having been determined between D and B. Green v. Tourtellott, 11 Cush. (Mass.) 227.

Public Lands.—In an action of forcible entry and detainer, between occupants of public lands, under the act of 1829, ch. 22, the title of the party turned out of possession cannot be inquired into. Pettyjohn v. Akers, 6 Yerg (Tenn.) 448.

The defendant cannot show that the land in controversy is a part of the public domain to oppose the plaintiff's allegation of seizin in fee, that being immaterial in this proceeding. Cunningham v. Green, 3 Ala. 127.

In Wisconsin, under Rev. Stat. ch. 117, concerning forcible entries and unlawful detainers, the nature of the complainant's estate is not a natural averment, where the entry complained of was with force and strong hand. Eastman v. White, 3 Chand. (Wis.) 196.

In the action of forcible entry and detainer, or forcible detainer, the title to the land cannot be inquired into for any purpose. The question of title is immaterial. The right to possession is all that is involved or can be determined. Nor is the rule in this regard changed under the statute extending the remedy by forcible detainer in favor of a purchaser of land at an execution sale, where the possession is withheld from him by the execution debtor. Kepley v. Luke, 106 Ill. 395.

In Illinois the mere filing by the defendants of an answer claiming title to the premises will not deprive a justice of the peace or county judge of jurisdiction; but if it should appear from the evidence that the question involved was one of title, and not for possession of the premises, the case must be dismissed. Pettit v. Black, 13 Neb. 142.

In Colorado, in an action of unlawful detainer before a justice of the peace against a tenant holding over, the effect of raising the question of title is to remove the cause to another court, and not to defeat it altogether. Klopfer v. Keller, I Colo. 410.

In an action of forcible entry and unlawful detainer, neither title nor right of possession being involved, it is erroneous to admit quit-claim deeds in evidence, as tending to show possession. Lachman v. Barnett, 16 Nev. 154.

In proceedings under the unlawful detainer act against a tenant to recover possession, the tenant cannot show as a defence that his lessor had no title, or that

on the part of both the plaintiff and the defendant to introduce deeds or other evidences of title in order to show the right to possession. And such evidence may properly be used to establish the extent and boundaries of the land claimed, and on the question of damages, and the good or bad faith of the entry or detainer.

his title was defective, or that it was only an equitable title. McLean v. Spratt, 20 Fla. 515.

Where the defendant in an action for forcible entry and unlawful detainer answers claiming to be rightly in possession, on the ground that, under a contract with the plaintiff, he has been erecting a building for the latter upon the premises, and that he has not been paid in full for his work, the question of title to the land does not and cannot arise. Platteville v. Bell, 66 Wis. 326.

Intervention. The policy of the law being to confine the inquiry, in proceedings in forcible entry and detainer, to the question of the right of possession only, a third party, who, in such a proceeding before a magistrate, claims possession by virtue of his superior title, cannot intervene, since the magistrate cannot try the question of title. Texas Land Co. v. Turman, 53 Tex. 619.

Certifying Case to Higher Court. Where the statute so provides, the case may be certified to a higher court where the issue of title is raised. McNamara v. Culver, 22 Kan. 661; Tibbetts v. O'Connell, 66 Ind. 171; Jordan v. Walker, 56 Iowa, 686.

An action of forcible detainer, upon being certified to the district court upon a plea of title, is not changed to an action for the recovery of real property; and a second trial is not a matter of right. McNamara v. Culver, 22 Kan. 661.

1. Price v. Olds, 9 Kan. 66; Conaway v. Gore, 27 Kan. 122; Dennis v. Wood, 48 Cal. 361; Morgan v. Higgins, 37 Cal. 59; Conroy v. Duane, 45 Cal. 597; Anderson v. Mills, 40 Ark. 192; Dortch v. Robinson, 31 Ark. 296; Camley v. Stanfield, 10 Tex. 546; s. c., 60 Am. Dec. 219; Texas Land Co. v. Turman, 53 Tex. 619; Pearson v. Herr, 53 Ill. 144; Brooks v. Bruyn, 18 Ill. 539; Huftalin v. Misner, 70 Ill. 205; Slate v. Eisenmeyer, 94 Ill. 96; Nicholson v. Walker, 4 Ill. App. 404; Cox v. Cunningham, 77 Ill. 545: Winterfield v. Strauss, 24 Wis. 394: Gillett v. Mathews, 45 Mo. 307; Silvey v. Summer, 61 Mo. 253; Mather v. Hood, 8 Johns. (N. Y.) 44: Settle v. Settle, 10 Humph. (Tenn.) 504; Philips v. Sampson, 2 Head. (Tenn) 429; Dotson v. State, 6 Coldw. (Tenn.) 545; Allison v. Casey, 4 Baxt. (Tenn.)

587; Turnley v. Hanna, 82 Ala. 139; Lalonette v. Lipscomb, 52 Ala. 570; Loring v. Willis, 4 How. (Miss.) 383; Cummings v. Kilpatrick. 23 Miss. 106; Clymer v. Powell, 56 Miss. 672; Rabe v. Fyler, 10 S. & M. (Miss.) 441; s. c.. 48 Am. Dec. 763; Walls v. Endel, 17 Fla. 478; Crawford v. Morris, 5 Gratt. (Va.) 90; Emerick v. Tavener, 9 Gratt. (Va.) 220; s. c.. 58 Am. Dec. 217.

Instruction to the Jury.-In an action of forcible entry and detainer to recover possession of the house and premises described in the suit, the circuit judge admitted title papers to be read to the jury, informing them that they could not inquire into the title, but only into possession, and that the papers were read to them only to show the character of the holding of the parties. Held, that this was not objectionable. Settle v. Settle, 10 Humph. (Tenn )


Under Code, ch. 34, § 1, an action of unlawful detainer will lie, though it turns altogether upon the validity of the title under which the defendant claims to hold possession, but it determines only the right of possession. Corbett v. Nutt, 18 Gratt. (Va.) 624.

Object of the Evidence. The defendant in an action of forcible entry and detainer may show that his grantor took up the premises under the possessory act of 1852, although such act was not fully complied with, where the.object of such evidence is limited to proving the extent of the defendant's possession. Hoag v. Pierce, 28 Cal. 187.

Certificate of Sale and Sheriff's Deed. – In an action of unlawful detainer, where the defendant, having purchased the premises at a sheriff's sale under execution against a plaintiff, received the possession from an under tenant of plaintiff's lessee after the expiration of the original tenancy, the record of the judgment under which the land was sold, and the sheriff's deed for the premises, are not admissible evidence for the defendant, even "to show that his possession was lawful." Such evidence goes to the merits of the title, and is therefore inadmissible. Clay's Dig. 251, 5; Code, § 2859. Dumas v. Hunter, 25 Ala. 711. Under the Georgia Act of 1853-4, to

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