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bring the action while his tenant is in possession; it should be brought by the tenant. But in those States where the remedy has been extended by statute to include cases of holding over by tenants, the landlord may maintain the action against his tenant, and usually against any sub-tenant or assignee of a tenant holding over. The action may be brought

capacity of agent for S. During this condition of affairs, D. entered upon the premises. Held, that M. could not maintain an action against D. under the forcible entry and unlawful detainer statute, by reason of want of possession on his part. Mitchell v. Davis, 20 Cal. 45.

1. Treat v. Stuart, 5 Cal. 113; Bennet v. Montgomery, 8 N. J. L. (3 Hals.) 48; McCartney . Alderson, 49 Mo. 456; Holderman 7. Middleton, 6 Bush (Ky.), 44; Trabue v. Talbot, 6 J. J. Marsh (Ky.), 602; Hudgens v. Temple, 12 B. Mon. (Ky.) 198; Quertemus v. Breckenbridge, 5 Dana (Ky.), 125; Yoder v. Easley, 2 Dana (Ky.), 245; Mann v. Brady, 67 Ill. 95; Hays v. Porter, 27 Tex. 92. And see Langworthy v. Myers, 41 Iowa, 18; Bradley v. Hume, 18 Ark. 284; Lecatt . Stewart, 2 Stew. (Ala.) 474.

Lessee Against Former Lessee Holding Over. One who, as lessee from the owner, is entitled to possession to real property, may maintain proceedings to recover possession under the statute relating to unlawful detainers against a prior lessee of such owner holding over after the expiration of his term. Burton v. Rohrbeck, 30 Minn. 393.

A covenant in a lease of a hotel, that the lessor may retain and occupy a room therein, and board there, is not a resevation of the room from the operation of the lease; and for a forcible entry into this room the lessee alone can complain. Polack . Seafer, 46 Cal. 270.

2. Kelly 7. Teague, 63 Cal. 68; Patchell v. Johnson. 64 Ill. 305; Douglass v. Anderson, 28 Kan. 262. But see Fifty Associates v. Howland, 11 Metc. (Mass.) 99; Wolfe v. Angevine, 57 Miss. 767; Holland v. Reed, 11 Mo. 605; Elliott v. Lawless, 6 Heisk. (Tenn.) 124.

An heir may maintain forcible detainer aganist the tenant of his ancestor, who holds over, without first reducing the premises to actual possession. Turley v. Foster, 2 A. K. Marsh. (Ky.) 204.

Unlawful Detainer May be Maintained only where the Relation of Landlord and Tenant Exists; not to dispossess one from land of which he is in possession under a contract to purchase which he has failed to perform. Mason v. Delancy, 44 Ark. 444.

Under the act of March 2, 1875. as un

der Gould's Dig. ch. 72, an action of unlawful detainer will not lie on the right of possession merely; but the relation of landlord and tenant, express or implied, must exist between the plaintiff and the defendant. Dortch v. Robinson, 31 Ark. 296.

A party cannot recover possession of the premises under the act allowing an action of unlawful detainer to be brought against a tenant holding over or failing to pay rent unless the relation of landlord and tenant exist by convention. Thus, if the owner of a hotel leases the same, and then enters into such a partnership with the lessee as to destroy the lease, he cannot afterwards maintain an action of unlawful detainer against his partner and former tenant. Pio v. Cuyas, 48 Cal. 639.

Although a mortgagor or purchaser pay a certain sum as rent, yet, if it is only interest on the purchase-money or debt, he will not be a lessee nor will he be within Comp. Stat. ch. 44, SS 15, 23, or 30, respecting forcible entry and detainer, for which all title, both legal and equitable, must have ceased. Davis v. Hemenway, 27 Vt. 589.

A and her husband's tenant obtained an award as to differences between them as to the rent, and as to when tenant should deliver up possession. A's husband had absconded, but, after the award authorized his brother to extend tenant's lease. A served notice on tenant to quit in consequence of his failure to yield possession according to the award, and brought an action of forcible detainer on his ron-compliance with her notice. Held, that she could not maintain it, as the relation of landlord and tenant did not exist between them. Luttrell v. Caruthers, 5 Ill. App. 544.

Forfeiture of Lease.-If the tenant disputes the title under which he entered, from that moment his possession becomes tortious, and the landlord may acquire possession by process of forcible entry and detainer, and this principle is strictly applicable to all who succeed to the possession from or through the tenant. Fusselman v. Worthington, 14 Ill. 135.

Where a tenant used leased premises for the unlawful sale of liquor, whereby

Action,

under the act of April 18, 1870 (67 Ohio
Laws, 101) he forfeits his lease, the land-
lord may maintain an action of forcible
detention before a justice, to recover the
premises. He is not required to sue in
equity. So held where the landlord was
not chargeable with leasing the premises
Justice v.
for the unlawful business.
Lowe, 26 Ohio St. 372.

The provisions of the statute in relation to summary process for recovering possession of leased premises apply only where leases terminate by lapse of time or by reason of some express stipulation in them; and a lessor having leased land with a condition that the land leased should not be used for certain purposes, which was broken, cannot avail himself of the summary process if there is no stipulation that the lease should terminate upon the breach. Lang v. Young, 34 Conn. 526.

Against Tenant Entering by Collusion of Fraud. An action for an unlawful detain er under the statute cannot be maintained unless the defendant entered as a tenant of the estate, or is in possession of the same by, from, under, or by collusion with such tenant; but it need not be shown that the tenancy was created by the plaintiff, if he is entitled to the possession as a remainderman, or as owner Stinson v. Gosset, 4 of the reversion. Ala. 170; Snoddy v. Watt, 9 Ala. 609. Where judgment is rendered in favor of a landlord against his tenant, for the possession of the demised premises, in an action of forcible detainer for holding over after the expiration of the term, and such tenant, by collusion, sublets the premises to another person, he remaining in the same as before; and the sub-letting is secret, and unkuown to the landlord at the time of the suit, and such subtenant is dispossessed.-the latter will not be entitled to maintain an action against the landlord and officer, in trespass, for executing the writ of possession; and the same rule applies if the subletting is a mcre pretense to hold the possession Miller v. White, 80 through another.

Ill. 580.

Where a party obtains possession of land, which he has purchased, by collusion with the tenant of an adverse holder, he only holds in the same capacity as the tenant, and the lessor can recover possession by forcible entry and detainer, whether entitleg to retain it or not. Cartney . Hunt, 16 Ill. 76.

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Action Brought by Second Lessor.-Lessees for a term of years are assigns within the meaning of the act of 1865, which amends the act of forcible entry and

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the lessor, his heirs or
detainer so as to apply to a tenant hold-
ing over against
assigns." A lessor for years who refuses
to surrender possession upon the expira-
tion of his term, is therefore liable to an
action brought under the act by one to
whom a second lease has been made by
the owner, to commence upon the deter-
Ball v.
mination of the first lease.
Chadwick, 46 Ill. 28.

Re-entry by Tenant.-Where a lessee after the expiration of his lease, delivers possession to the lessor, and afterward re-enters the premises, the latter cannot maintain an action against him under section 13 of the act concerning forcible entries and unlawful detainers. Walls v. Preston, 28 Cal. 224.

An under-tenant in Under-tenant. possession of demised premises under a lease from the original tenant, cannot lawfully be dispossessed in proceeding under the statute relating to forcible entry and unlawful detainer by the landlord against the tenant, to which such undertenant is not made a party. Bagley v. Sternberg, 34 Minn. 470.

Grantee of Lessor.-In 1871 A obtained a judgment of against B in an action of unlawful detainer, and then, without taking possession, leased the land to B until 1876; A conveyed to C. Held, that C might, under Wag. Mo. St. p. 642, § 3, maintain against B an action of unlawful detainer, if B refuse to surrender possession at the termination of his lease, Wag. Mo. St. p. 646, § 27, not applying Kaulleen v. Tillman,

to such an action.
69 Mo. 510.

Agreement to Extend Lease.-A lessor cannot maintain forcible entry and detainer against a lessee who holds his written agreement leasing the tenement to him for five years, and as much longer as he desires," at a certain rate per annum, if the lessee performs all that is required of him by the terms of the lease, although the original five years have long since elapsed, and the lessor has given the lessee notice to quit. between the parties to such a lease, the right of occupation by the lessee, so long as he fulfils its conditon, is not liable to be defeated at the option of the lessor. The lessor is estopped by the receipt of the rent, and by his own written agreement, from asserting that the lessee's possession is unlawful. Sweetser v. McKenney, 65 Me. 225.

135

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Request to Surrender Possession. -In an action under the statute (Comp. Stat. 307, 308), to get possession of land, the action is given to any person entitled to the possession, and against the lessee who

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by joint tenants and tenants in common, or by one or more of them,1 and usually by a tenant in common against his co-tenant;2 and a tenancy at will is sufficient to sustain it, and it may also be maintained by executors and administrators, receivers, and gen3. McDonald v. Gayle, Minor (Ala.), 98; Jones v. Shay, 60 Cal. 508; Com. v. Bigelow, 3 Pick. (Mass.) 31.

holds over, or any person holding under him. And where defendant conveyed to B at will, and agreed to surrender possession to B, or his grantee when requested, and B. deeded to P., and P. to the plaintiff, and all three requested the defendant to surrender the premises to the plaintiff, and the defendant refused, held, that the plaintiff could sue the defendant for posesssion of the premises, under the statute, and that, after notice, the defendant's right as lessee was determined, and he was estopped from setting up the adverse right of B. or B.'s grantee. Barton v. Learned, 26 Vt. 192.

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No Bar to Another Action. The fact that a landlord may invoke the remedy of forcible entry and detainer does not prevent his maintaining a formal suit for the possession of the land. Juneman v. Franklin, 67 Tex. 411.

1. Wood v. Phillips, 43 N. Y. 152; Bowers v. Cherokee Bob, 45 Cal. 495; Turner v. Lumbrick, 1 Meigs (Tenn.), 7; Rabe v. Fyler, 10 S. & M. (Miss.) 440.

One tenant in common may sue in forcible entry and detainer without joining his co-tenant. Turner v. Lumbrick, I Meigs (Tenn.), 7; Jones v. Phillips, 10 Heisk. (Tenn.) 562.

A joint-warrant of forcible entry in favor of three, when two only have a title, cannot be maintained. Thomas v. Jones, 2 A. K. Marsh. (Ky.) 356.

An action of forcible entry and detainer is not the proper remedy for a person who has made a verbal agreement with others that they should mine on land claimed by him under the possessory act until they struck coal, receiving two thirds of the claim therefor; and afterwards all were to prosecute the work jointly, the plaintiff paying one third and the defendants two thirds of the expenses; and where the defendants have located the land under the possessory act, the plaintiff having failed to perform the necessary act to complete his title. Henderson v. Allen, 23 Cal. 519.

2. Mason v. Finch, 2 Ill. 495; Jamison v. Graham, 57 Ill. 94; Taylor v. White, 1 T. B. Mon. (Ky.) 37; Presbrey v. Pres brey, 13 Allen (Mass.), 281; Mumford v. Brown, I Wend. (N. Y.) 52; Eads v. Rucker, 2 Dana (Ky.), 111; Hershey v. Clark, 27 Ark. 528; Bowers v. Cherokee Bob, 45 Cal. 495; Henderson v. Allen, 23 Cal. 519; Lick v. O'Donnell, 3 Cal. 59.

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Against Owner after Notice to Quit.Under that statute, if a tenant at will of a dwelling house holds over his term, and therefore, after due notice to quit, the landlord forcibly enter and eject him, his family, and effects, from the house, the entry is unlawful, and the tenant may re cover his damages therefor in an action of trespass quare clausum fregit; and it will make no difference that the tenant had agreed to leave by a certain day named, and that if he did not leave, the landlord might put him out and his effects in any way he chose. Dustin v. Cowdry, 23 Vt. 631.

In Virginia, where a tenant agrees by a writing under seal that he will surrender possession when requested by the purchaser, he is a mere tenant at will or suffrance, and is not entitled to notice to quit. In such a case the landlord is the proper person to institute forcible entry and detainer. Harrison v. Middleton, I Gratt. (Va.) 527.

4. Beezley v. Burgett, 15 Iowa, 192; Rice v. Brown, 77 Ill. 549; Lass v. Eisleben, 50 Mo. 122; Winningham v. Crouch, 2 Swan (Tenn.), 170; Moody v. Ronaldson, 38 Ga. 652; Spear v. Lomax, 42 Ala.

516.

Parties. To an action of unlawful detainer against one holding under a lease from the ancestor, the heirs at law are not proper plaintiffs; the right of possession and the action passes to the administrator or executor as an asset. Scott v. Floyd, 16 Fla. 151.

A process for forcible entry and detainer will not abate because the plaintiffs in describing their possession, state that they are possessed as executors. Edmonds v. Morrill, Brayt. (Vt.) 20.

Under the statutes a devisee cannot maintain an action of forcible detainer against a tenant of his testator. Picot v. Masterson, 12 Mo. 303.

Unless executors have a vestiture of title they cannot maintain this action. Prewitt v. Durham, 5 T. B. Mon. (Ky.) 17.

5. The receivers of an insolvent bank, where an execution in favor of the bank has been legally extended on real estate, and seisin delivered to such receivers, may in their own names maintain an ac

erally by any person whose possession or right of possession has been unlawfully invaded.1

IX. AGAINST WHOM THE ACTION MAY BE BROUGHT.-As a general rule, the person in actual possession of the premises detained at the time of the commencement of the action is the one against whom it should be brought.2 The right is not restricted to an

tion of forcible entry and detainer against the execution debtor, if he continue in possession without the consent of such receivers. Baker v. Cooper, 51 Me. 388.

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A

1. Mortgagee Taking Possession. mortgagee who has not taken possession is not, within Mass. Gen. Stat. ch. 137, such person entitled to the premises "as may be restored to the possession" by an action of forcible entry and detainer. Nor is the purchaser under the power of sale entitled, if neither he nor the mortgagee has taken possession. Boyle v. Boyle, 121 Mass. 85; Walker v. Thayer, 113 Mass. 36.

Mortgagor Preventing Mortgagee from Taking Possession.-The statute relating to forcible entry and detainer does not apply to the case of a mortgagor in possession who has prevented the mortgagee from taking actual possession or excluded him from taking possession. Reed v. Elwell, 46 Me. 270; Sawyer v. Hanson, 24 Me. 542.

An action under Rev. Stat. ch. 104, § 2, for forcible detainer, may be maintained by a mortgagee in possession after entry to foreclose, against one who has entered in a peaceable manner but without right, and afterwards holds possession by force. Mitchell v. Shanley, 15 Gray (Mass.). 319.

Equitable Mortgage. The process of forcible entry and detainer lies by an equitable mortgagee against the equitable mortgagor; although otherwise where the parties to the suit are parties to a legal instead of an equitable mortgage. Jewett v. Mitchell, 72 Me. 28.

A possessory action by an owner not entitled to possession as against an equitable assignee of a mortgage cannot be maintained against one holding under such equitable assignee. Chamberlain v. Derry, 138 Mass. 546.

A Mortgagee before Foreclosure cannot maintain forcible entry and detainer against the mortgagor or those claiming under him. Bragdon v. Hatch, 77 Me. 433; Roach v. Cosine, 9 Wend. (N.Y.)

227.

See Womack v. Powers, 50 Àla. 5; Way v. Raymond, 16 Vt. 371.

A Mortgagee in Possession cannot be ousted by the executive debtor, or by one claiming under him. Nicholson v. Walker, 4 Ill. App. 404.

The Guardian of an Imbecile cannot maintain an action of unlawful detainer in his own name under the Wisconsin statute against a tenant who holds over contrary to the terms of a lease executed by some imbecile person before he was put under guardianship. The statute gives the remedy only to the lessor, his heirs, executors, administrators, or assigns; and in such a case the action should be in the name of the ward. King v. Cutts, 24 Wis. 625.

Husband and Wife.-Where a husband and wife have lived for a long time together in a dwelling, although he deserts her, leaving her only in actual occupancy of the premises, the constructive possession remains in him sufficiently to enable him to maintain proceedings of forcible entry against one who enters unlawfully. Davis 2. Woodward, 19 Minn. 137,

Where a wife to whom her mother has conveyed land, reserving a life estate therein, left her husband, who lived with the grantor on the land, and after the death of the grantor refused to surrender the estate to the wife's lessee, held, that an action under Mass. Gen. Stat. ch. 137, to recover possession, could not be maintained. The husband's possession gave no right to the plaintiff or his grantor as against a tenant wrongfully holding over. Whitney . Dart, 117 Mass. 133.

Person Dispossessed under Proceedings to which he was not a Party.-A person in the quiet possession of real estate, claiming as owner, waiving his right to an injunction to restrain others from dispossessing him by a writ of possession to which he is not a party, can resort to an action of forcible entry and detainer to restore to him the possession from which he has been forcibly and unlawfully ejected. Brush v. Fowler, 36 Ill. 53; Laird v. Winters, 27 Tex. 440; Chiles v. Stephens. 1 A. K. Marsh. (Ky.) 334; Martin v. Patchin, 4 Mo. App. 567.

But in Kentucky, while pursuing that process, he cannot succeed in a motion for restitution. Stephens v. Chiles, 1 A. K. Marsh. (Ky.) 335.

2. Orrick v. St. Louis, 32 Mo. 315; Preston v. Kehoe, 10 Cal. 445; Rice v. Brown, 77 Ill. 549; Kelly v. Teague, 63 Cal. 68; Rooney v. Gillespie, 6 Allen

action against the disseizor, but it may be maintained against his representatives and against those in possession under him.1 And where the entry and detainer was forcible, the action may be maintained against one having a right of possession, and even against the owner himself. And even though the defendant did not participate in the act, if it was done under his direction and procurement it is sufficient.3

It may be maintained against a husband and wife and other joint parties where the forcible entry and detainer complained of was the joint act of both; but not against two or more holding in severalty.5

Where a tenant holds over after the expiration of his term or after his term has been forfeited or duly terminated in the States where the remedy is made applicable to such cases, the action must usually be brought against the tenant. But where the per

(Mass.), 74; Bird v. Fannon, 3 Head (Tenn.), 12; Ewing v. Bowling, 2 A. K. Marsh. (Ky.) 36; Gray v. Nisbet, 2 A. K. Marsh. (Ky.) 35; Floyd v. Ricks, 11 Ark. 451; Russell v. Desplous, 25 Ala. 514; Fogle v. Chaney, 12 B. Mon. (Ky.) 138. And see Russell v. Desplous, 29 Ala. 308.

One in Possession of Land under Contract. The proceeding is authorized to remove one in possession of land under a contract with the owner to erect a building for him, and who asserts and main tains possession to the exclusion of the rightful owner. Platterville v. Bell, 66 Wis. 326.

An action of forcible entry and detainer cannot be maintained against the husband of one of several heirs, who, with his wife, takes peaceable possession of the house of her mother after the death of the latter, by one who was boarding with the mother under an agreement which had not expired at the time of taking possession. Cofoid v. Bishop, 11 Ill. App. 117.

Railroads. Both on general principles and under the Arkansas statutes, a railroad company, like an individual, is within the operation of the forcible entry and detainer act. If such a company acquires. possession by violence, it must restore it, without regard to whether it or plaintiff has the better right. Iron Mountain & Helena R. Co. v. Johnson, 119 U. S. 608.

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come upon the lands or not; so if severa come in company, where their entry is no lawful, and all of them except one enter in a peaceable manner and that one only uses force, it is a forcible entry in them all, because they came in company to do an unlawful act; but it is otherwise when one had a right of entry, for then they only come to do a lawful act, and therefore it is the force of him only who used it. And he who barely agrees to a forcible entry made to his use without his knowknowledge or privity is not within the statutes, because he did not concur in or promote the force. I Russ. on Cr. (9th Am. Ed.) 427.

Parties Defendant.-In unlawful detainer by the husband's vendor to recover possession of premises contracted for in his name, but as trustee for his wife, she is not a necessary party. Williamson v. Paxton, 18 Gratt. (Va.) 475

Failure to Serve a Defendant. — A warrant of forcible entry and detainer against two, but executed upon one only, may be proceeded upon against him who has been served, but no further proceedings can be had therein against the other. Harman v. Odell, 6 Gratt. (Va.) 207.

5. Gould v. Hendrickson, 9 Ill. App. 171; Reynolds v. Thomas, 17 Ill. 207.

6 Casey v. King, 98 Mass. 503; Floyd v. Ricks, II Ark. 451; Ewing 7. Bowling, 2 A. K. Marsh. (Ky.) 36; Gray v.

1. People v. McAdam, 84 N. Y. 287; Nesbet, 2 A. K. Marsh. (Ky.) 35; Kelly Jackson v. Warren, 32 Ill. 331.

2. Emerson v. Sturgeon, 59 Mo. 404. 3. Minturn v. Burr, 20 Cal. 48. 4. State v. Harvey, 3 N. H. 65. Accessories.-A single person may commit a forcible entry, as well as a number. But all who accompany a man when he makes a forcible entry will be deemed to enter with him, whether they actually

v. Teague, 63 Cal. 68; Wheeler v. Conan, 25 Me. 283.

Privity of Parties.-An action for unlawful detainer cannot be maintained, either under the general statute (Clay's Dig. 251) or under the especial act applicable to Mobile (Pamphlet Acts, 18478, 99), against one who, within three years last past, unlawfully entered upon

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