VIII. WHO MAY BRING THE ACTION.-In general, the person who was deprived of and who has the legal right to the possession is the proper person to institute the proceedings, in whatever char protect owners of lands and tenements against intruders, title is admissible as evidence of the right of possession; and the counter affidavit of the occupant must set forth that he, in good faith, claims a legal right to the possession. Poulan v. Sellers, 20 Ga. 228. In an action of forcible entry and detainer, a defendant may introduce evidence of title in himself not for the purpose of establishing or trying title, but for the purpose of showing that his entry, if wrongful, was not made with a wrongful intent, but in good faith; and the fact that he does so does not entitle the plaintiff, in rebuttal, to introduce evidence showing title in himself. Dennis v. Wood, 48 Cal. 361. Boundaries, Damages, Fraud, etc.-As a general rule, the title cannot be inquired into in this form of action; yet it is admissible to look to the title to define the boundaries; or, in view of the question of damages, or rents to be recovered in an action brought by a mere intruder against the rightful owner of the land; or where the claimant by fraud induces another to take a lease, or to enter under him upon a false representation as to his title. In such cases, and perhaps others, the title may be looked to upon the question whether the case made out constitutes, in law, a wrongful entry or detainer. Philips v. Sampson, 2 Head (Tenn.), 429. Although an action of forcible entry and detainer does not involve the title to the premises, a deed to the plaintiff is admissible to establish the extent of his claim, and to show the animus with which the defendant entered in connection with the possession and improvements on premises adjoining. So held, where the deed showed that the wood lot in question had been conveyed to the plaintiff by the same grantor and at the same time as the plaintiff's arable land; and consequently, that the plaintiff had a sufficient possession to maintain the action, although not an actual pedis possessio. Pearson v. Herr, 53 Ill. 144. While, as a general rule, title is not a matter of inquiry or defence in actions of forcible entry and detainer, yet evidence of title in a defendant who has taken pos. session may be competent to show the purpose with which the entry was made, and to uphold the possession when obtained. Conaway v. Gore, 27 Kan. 122. See Jordan v. Walker, 52 Iowa, 647; Nicholson v. Walker, 4 Ill. App. 404. 8 C. of L.-9 A party may introduce a deed or deeds in evidence when necessary to show his right to the possession of the premises. Smith v. Kaiser, 17 Neb. 184; Gillett v. Mathews, 45 Mo. 307. Where an action of unlawful detainer is brought by a vendee of land against a person who had been in actual possession of a part of the land for eight years before the vendee bought, and is based upon an alleged subsequent renting by the defendant of the vendee, the proof being conflicting, it is not error to allow the defendant to introduce in evidence his title paper from the vendor to show the character of his holding, upon a proper charge to the jury that they could not inquire into the title, but only into the possession; and in the absence of the charge it will be presumed that a proper charge was given. McGhee v. Grady, 12 Lea (Tenn.), 89. A conveyance to one of the defendants may be relevant and competent evidence to show the extent of the possession claimed by him. Turnley v. Hanna, 82 Ala. 139. Compare, Lachman v. Barnett, 16 Nev. 154; Walls v. Endel, 17 Fla. 478; Conroy v. Duane, 45 Cal. 597. It is competent for the defendant to prove that prior to the entry the plaintiff disclaimed to him any interest or claim in the premises; and, if proven, such fact will constitute a defence to the action. Dudley v. Lee, 39 Ill. 339. Evidence of a parol agreement for title is not admissible. Mecham v. McKay, 37 Cal. 154. Landlord and Tenant.-A tenant holding over may defend his possession by showing that after lease he purchased the landlord's title at execution sale, and he may lawfully attorn to a third party, who, after the date of his lease, had thus purchased. Texas Land Co. v. Turman 53 Tex. 619. See Silvey v. Summer, 61 Mo. 253. But a tenant cannot attack the title of his landlord. Conroy v. Duane, 45 Cal. 597; Walls v. Endel, 17 Fla. 478; Slate v. Eisenmeyer, 94 Ill. 96. In an action of forcible entry and detainer a denial by the defendant of the plaintiff's title does not necessarily raise the question of title so as to oust a justice of the peace or county judge of jurisdiction, and the court may proceed with the trial until it is clear that the question of title is involved. Smith v. Kaiser, 17 Neb. 184. 129 acter or capacity this possession or right of possession may have been held.1 Thus the action may be maintained by one who holds possession under color of title; and in many of the States the remedy is given to grantees and vendees against their grantors and vendors and others who detain the premises from them after their right to possession accrues ;3 and in some to the vendor 1. People v. Fulton, 11 N. Y. 94; Martin v. Patchin, 4 Mo. App. 567; Baker v. Cooper, 57 Me. 388; Hoffman v. Harrington, 22 Mich. 52; Brush v. Fowler, 36 Ill. 53; Pensoneau v. Heinrich, 54 Ill. 271; Mann v. Brady, 67 Ill. 95; Rice v. Brown, 77 Ill. 549; Dudley v. Lee, 39 Ill. 339; Coonradt v. Campbell, 29 Kan. 391; Burdette v. Corgan, 27 Kan. 275; Sullivan v. Enders, 3 Dana (Ky.), 66; Holderman v. Middleton, 6 Bush (Ky.), 44: Chiles v. Stephens, I A. K. Marsh. (Ky.) 334; Barton v. Learned, 26 Vt. 192; Dustin v. Cowdry, 23 Vt. 631; Laird v. Winters, 27 Tex. 440; Hightower v. Fitzpatrick, 42 Ala. 597; House v. Camp, 32 Ala. 541; Liss v. Wilcoxen, 2 Col. 85. Compare Walker v. Thayer, 113 Mass. 36; Pitkin v. Burch, 48 Vt. 521; Burns v. Patrick, 27 Mo. 434; Wood v. Dalton, 26 Mo. 581; Womack v. Powers, 50 Ala. 5. An action for forcible entry and detainer is purely possessory, the question of title not being involved, and cannot be maintained by a person who has not had prior possession. Welden v. Schlosser. 74 Ala. 355. An estate for years is sufficient to support proceedings for forcible entry and detainer. Mead v. Daniel, 2 Port. (Ala.) 86. 2. Olinger v, Shepherd, 12 Gratt. (Va.) 462; Moore v. Douglass, 14 W. Va. 708; Mitchell v. Carder, 21 W. Va. 277; Prewitt v. Burnett, 46 Mo. 372; Harris v. Turner, 46 Mo. 438; Vanhorne v. Tilley, 1 T. B. Mon. (Ky.) 50. Under the act prescribing the mode of maintaining and defending possessory actions on lands belonging to the United States, S. entered upon a portion of land unoccupied, marked it out, so that the boundaries thereof might readily be traced, resided upon it, and was turned out by B. Held, that by an action of forcible entry and detainer S. might recover the land, but not a fine or treble damages. Stark v. Barnes, 4 Cal. 412. Where a tenant enters upon the inclosed and cultivated portion of a tract of land, under a lease for the whole, and claiming the entire tract, he has thereby such a possession of the inclosed portion of land as will enable him to maintain the action of forcible entry and detainer against any one who may forcibly enter upon that portion. Hardisty v. Glenn, 32 Ill. 62. Taking peaceable possession under color of title would not support the action. Botts v. Armstrong, 8 Port. (Ala.) 57. 3. Lowe v. Moore, 134 Mass. 259; Compton v. Ivey, 59 Ind. 352; Jewett v. Mitchell, 72 Me. 28. And see Pitkin v. Burch, 48 Vt. 521; Warren v. James, 130 Mass. 540. A warrant of forcible detainer may be maintained by a purchaser of the reversion against a tenant of his vendor. Herndon v. Bascom, 8 Dana (Ky.), 113; Mason v. Bascom, 3 B. Mon. (Ky.) 269. Who are Included in the Provision.The action of unlawful detainer allowed " by the Tenn. Code, § 3344, Where the defendant enters by contract, either as tenant or assignee of tenant, or as personal representative of a tenant, and in either case wilfully and with force holds over the possession from the landlord or assignee of the remainder," does not lie in favor of a purchaser at a sale under a trust deed against a tenant of the maker of the deed if the maker has remained in possession of the land up to the sale without disavowing the right of the trustee to possession or holding adversely to him. Ballow v. Motheral, 5 Baxt. (Tenn.) 600. In Illinois, where land has been sold by virtue of the powers contained in a trust deed, the action of forcible detainer is given to the purchaser at the sale, by statute, to recover the possession of the premises sold from the party to such trust deed, and the term "party" in such statute includes any one holding the possession of the premises under the maker of the deed. Preston v. Zahl, 4 Ill. App. 423. In such cases the plaintiff should show that the possession of the defendant is wrongful as against himself, and this is usually done by proving that the defendant went into possession under the party to the trust deed under the lien attached to the land. Preston v. Zahl, 4 Ill. App. 423. Entry under Plaintiff-Trust Deed.-To maintain an action of unlawful detainer it is requisite that the party who unlawfully withholds the land should have against the vendee where he has failed or refused to comply with the conditions of the contract under which he holds or has forfeited it.1 entered under the plaintiff; hence where certain lands were conveyed in trust to secure a debt, and were sold under a power of sale by the trustees, the purchaser could not maintain an action of detainer against the owner. Burford v. Nolan, 30 Miss. 427. Against Grantor. A grantee may maintain forcible entry and detainer against his grantor, the latter not defending under any other title, and the deed purporting to convey the whole, but in fact conveying only an undivided half of the described premises. Jewett v. Mitchell, 72 Me. 28. Against Tenant of Grantor.-After the owner of land has conveyed it he cannot maintain an action of forcible entry and detainer against a tenant in possession; and it is immaterial that he has agreed with grantee to obtain possession for him. Purdy v. Rakestraw, 13 Ill. App. 480. A tenant cannot be removed under the forcible entry and detainer act by a purchaser of the premises and an assignee of the lease where he has not attorned to him. Reay v. Cotter, 29 Cal. 168. A purchaser from a lessor cannot maintain the action of unlawful detainer on account of a mere holding over after the termination of the lease, pending which the purchase was made, even though the defendant may be estopped from denying the plaintiff's title. Divine v. Brown, 35 Ala. 596. Vendee against Vendor.-A party claiming a town lot under an executory contract cannot maintain an action or proceeding of unlawful entry and detainer under W. Va. Code, ch. 50,§ 211, against his vendor or his alienee who has the legal title where the entry was without force, and made under claim of right to the possession, and where such party was not in the actual possession of the lot when the entry was made. Supervisors v. Ellison, 8 W. Va. 308. 1. Monsen v. Stevens, 56 Ill. 335; Wilburn v. Hanes, 53 Ill. 207; Williamson v. Paxton, 18 Gratt. (Va.) 475: Beard v. Bricker, 2 Swan (Tenn.), 50; Sullivan v. Ivey, 2 Sneed. (Tenn.) 487. Failure to give Good Title.-In an action for possession where defendant is in possession under a written contract with plaintiff to convey by general warranty deed, and there was an undisclosed vendor's lien and judgments against plaintiff outstanding at the time, and the title was not in him, and the defendant having, in good faith, paid nearly all the contract, price as agreed, and part of the vendor's lien to avoid a sale of the land, being able and willing to pay the balance of the purchase price, demanded a deed, which plaintiff failed to give; plaintiff cannot maintain his action without alleging and showing his ability and willingness to convey the legal title by general warranty deed. Rosenberger v. Bowen (Va.), 5 S. E. Rep. 699. Land Subsequently Conveyed to Third Person. A vendor of land cannot maintain an action of unlawful detainer against one in possession under an executory contract of sale, with which he has failed to comply, where the former has subsequently conveyed the land to a third person. Such action must be brought by the latter. Dobson v. Culpepper, 23 Gratt. (Va.) 352. When a party borrows money and conveys land to secure its repayment, and takes back a contract for the reconveyance of the land upon payment, the relation of vendor and vendee will not exist, and the making the loan cannot maintain forcible detainer to recover possession upon default of payment by the party in possession. Such a case is not within the Ill. Statute of 1861. West v. Frederick, 62 Ill. 191. A, by a verbal contract, agreed to sell land to B, who entered accordingly, demanded a deed, and offered to pay. On A's refusal to carry out the contract, B paid C for the land and took a deed from C. C's title was that which A, under his contract, was to have obtained from B. Held, that A could not maintain unlawful entry and detainer against B. Ragsdale v. Phelps, 90 Mo. 346. The Remedy at Law and in Equity.-A vendor of land, while the contract of sale remains executory and before a deed is made to the purchaser, continues to be invested with the legal title, and (unless the provision in the Code, ch. 135, § 20, applies) may recover possession by an action at law, at least after making demand of the possession, even though the vendee may be entitled in equity to a specific execution of the contract, and to have the action at law in the mean time enjoined. Williamson v. Paxton, 18 Gratt. (Va.) 475. The case would be unaffected at law 1 So with respect to purchasers at judicial purchase sale.1 by a parol agreement of the vendor, how- Gratt. (W. Va.) 475. In unlawful detainer, under Colorado Rev. Stat. 333. 5, if the complaint alleges a tenancy and a holding over, and the evidence shows that the defendant went in under an agreement to purchase, the plaintiff cannot recover. Keller v. Klopfer, 3 Col. 132. Under the Illinois act of Feb. 20, 1861, amending Rev. Stat. 1845, ch. 43, and permitting the vendor of the land to maintain an action of forcible detainer against the vendee, where the latter has entered into possession of the premises under a contract of purchase, but before obtaining a deed of conveyance to the same, and fails or refuses to comply with the terms of the contract, the vendor may avail himself of the remedy without first putting the vendee in statu quo. The proceedings do not amount to a rescission of the contract, and the vendee cannot at any time obtain a decree for a specific performance. Wilburn 7. Haines, 53 Ill. 207. The Opposite Doctrine.-In some States the action cannot be maintained by a vendor of real estate against a purchaser who is in possession under his contract of purchase and has made default in the payment of a part of the purchase price, even though the contract provides that time is of the essence of the contract, and a failure to pay promptly as the payments become due shall work a forfeiture of the contract and the vendor be entitled to the possession of the land. Chicago, etc., v. Shupa, 16 Neb. 341; Nightingale v. Barens, 47 Wis. 389; Sims v. Humphrey, 4 Denio (N. Y.), 185; Hay v. Connelly, I A. K. Marsh. (Ky.) 393; McCombs v. Wallace, 66 N. Car. 481. 1. Lehman v. Whittington, 8 Ill. App. 374; Rice v. Brown, 77 Ill. 549; Pensoneau v. Heinrich, 54 Ill. 271; Liss v. Wilcoxen, 2 Cal. 7, 85; Barto v. Abbe, 16 Ohio, 408. And see Necklace v. West, 33 Ark. 682; Woodside v. Ridgeway, 126 Mass. 292; Womack v. Powers, 50 Ala. 55. - Applies only where there is a Privity between the Parties. The summary remedy which the statute of forcible entry and detainer (Session Laws 1840, 84, 5) provides for obtaining possesion, after redemption expired, of premises sold on mortgage foreclosure or under execution, applies only where there is a privacy between the parties, and not where the grantee of a purchaser on sale under execution seeks to recover possession from a person holding adversely to the judgment debtor. Royce v. Bradburn, 2 Dougl. (Mich.) 377. The act of 1822, in relation to the proceedings of unlawful detainer (Hutch. Code, 813, art. 7, § 3), does not apply to the case of a vendee at execution sale, where the party in possession of the premises or those under whom he claims did not come into the possession originally as tenants to the defendant in the execution. Cummings v. Kilpatrick, 23 Miss. 106. The purchase of land at a sheriff's sale cannot recover the possession from one in possession under a mortgage executed by the judgment debtor prior to the judgment under which his title is obtained, even though the mortgage entered after the sheriff's sale under an arrangement with the mortgagor to allow rent by way of credits on the mortgage debt. Dickason v. Dawson, 85 Ill. 53. In Massachusetts, if land is sold under a power contained in a mortgage, the grantee of the purchaser cannot maintain an action against the mortgagor to recover possession of the land. Warren v. James, 130 Mass. 540. Under the Statute of Illinois the purchaser at a foreclosure sale may maintain forcible entry and detainer against the party in possession of the premises, but the plaintiff must show that the party claiming the possession is holding under the mortgagor. Lehman v. Whittington, 8 Ill. App. 374. A Sold under a Distress Warrant a house built by B on land leased to him by A, and being himself the purchaser afterwards brought forcible entry and detainer to recover possession. Held, that as his only right thereto was under the sale, the action would not lie because, if the house were regarded as real estate, he could not have levied upon it as the personal property of the tenant; and if as personal property, he could not obtain possession by this form of action. sing v. Keohane, 4 Ill. App. 460. Sheriff's Deed Given in Less than Twelve Months.-The sheriff is not authorized to Kas While the possession of an agent is usually the possession of his principal, he may nevertheless acquire such a possession as to entitle him to maintain the action.1 A landlord cannot make a deed of land soid under execution until the expiration of twelve months from the sale; and a deed made less than twelve months from the sale will not entitle the grantor to maintain unlawful detainer for the land. Dortch v. Robinson, 31 Ark. 296. A Purchaser under a Tax Sale cannot recover possession in Ohio by proceeding under the statute for forcible entry and detainer against one having a deed in fee for the land. Kelley v. Hunter, 12 Ohio, 216. But compare Barto v. Abbe, 16 Ohio, 408. Possession Necessary.-A lessee who has never been in possession of the premises, and who acquires title through a purchaser at a mortgagor's sale, neither the purchaser nor the mortgagee having ever been in possession, cannot maintain an action on Mass. Gen. St. ch. 137, for forcible entry and detainer. Woodside v. Ridgeway, 126 Mass. 292. The process of forcible entry and detainer is not available against one who is in possession of the premises under a decree of a court of chancery, though the plaintiff may have been wrongfully disposed. His remedy must be by petition for reinstatementor by ejectment to enforce his paramount title. Scott v. New、 som, 4 Sneed (Tenn.). 457. Within the meaning of the provision of the statute in reference to summary proceedings to recover lands (2 R. S. 512, 28, subd. 4, amended by chap. 101, Laws of 1879), which authorizes the removal, as a tenant, of any person holding over and continuing in possession of real estate sold under execution against such person after title under said sale has been perfected, any person in possession under the title which the purchaser has acquired is a tenant, and may be removed. The statute is equally applicable to the judgment debtor, and all who hold under him under pretence of title acquired from him, posterior to the judgment. Accordingly held, that a person in possession under a lease executed by a receiver appointed in an action brought by executors, who held as such a leasehold interest in the premises, was a tenant within the meaning of the said provision; and that one who had purchased the interest of the executors upon sale under execution issued by order of the surrogate, upon a judgment against them as executors recovered prior to the appointment of the receiver, the supreme court having given leave that the execu tion be levied and enforced upon property in the hands of the receiver or the executors, could maintain summary proceedings to remove such tenant; that under the order of the supreme court the receiver was in effect the person against whom the execution was issued. People v. McAdam, 84 N. Y. 287. 1. Where a personal representative has been in actual possession, he may bring the action either in his representative or individual character. Spear v. Lomax, 42 Ala. 576. See Emsley v. Bennett, 37 Iowa, 15. One who is in possession of premises under agreement to keep possession of them, together with articles of furniture, for the owner, has such an interest as will enable him to maintain an action of forcible entry and detainer. House 2. Camp, 32 Ala. 541. In an action of forcible entry and detainer, it was shown that originally J. owned the land in controversy, and while so owning it put it into the possession and control of R., who was to have the use of the same in consideration of his improving it. Afterward J. sold and conveyed the land to B., and B., through his attorney, K., instructed R. to take charge of the premises for B., B. and B supposing that R. took charge of the property as the agent of B. Afteward R. leased the property to L., and, about the time that L.'s lease terminated, C., the defendant in the forcible entry and detainer suit, and S., in collusion with L., attempted to take possession of the property in the absence and without the knowledge of R. or B.; but before C. obtained complete possession R. entered upon the premises, and then C., in connection with S. and L., by force took complete possession of the property, and afterward held the same by force. Afterward, while C. was so in the possession of the property, B. commenced this action of forcible entry and detainer against C. for the possession of the property, and the complaint was sworn to by R. as the agent of B. Held, that B. may maintain the action. 275. Burdette "'. Corgan, 27 Kan. Upon a writ of restitution in favor of S., the sheriff returned that he "put S., by his representative M., in peaceable possession, etc." It appeared also that M. had afterward continued to exercise some control over the premises, as if in the |