Cummings v. Kilpatrick

23 Miss. 106

• Court: Mississippi Supreme Court
• Decided: January 15, 1851
• Status: Published

Opinion

Mr. Justice Smith

delivered the opinion of the court.

This case comes before us by appeal, from the circuit court of Marshall. In its inception it was an action of unlawful detainer, instituted under the third section of the statute 'concerning forcible entries and detainers. Hutch. Dig. 813. •

On the.trial of the issue in the circuit court, the defendant demurred to the evidence of the plaintiff. The court, upon the facts thus established by the demurrer, determined the issue in favor of the appellee; and judgment was accordingly entered for him.

The material facts, as they appear in the record, are as follows. Kilpatrick, the appellee, on the 20th of December, 1837, recovered judgment in an action of assumpsit, against Nelson, Chandler & Co.; from which an appeal was taken to this court, pending which, in 1838, Nelson, Chambers & Co. conveyed the land in controversy to Ross, who, on the 23d June thereafter, conveyed it to Dye.. An execution issuing on Kilpatrick’s judgment was levied on the land, May 24th, 1839. Dye enjoined the sale, and having died during the pendency of the injunction, the suit was revived in the name of his representative. The injunction was finally disposed of in this court in 1845. Byrn, Dye’s administrator, took possession of the land, reported the estate insolvent, and preparatory to a sale of the decedent’s estate under an order of the court of probate, filed his bill in order to remove the cloud resting upon the title thereof, arising out of appellee’s judgment against Nelson, Chambers' & Co.; also to enforce a sale under a venditioni exponas, sued out on said judgment.

Byrn rented the land in 1846 to the appellant, who remained in possession down to the time of the trial.

The bill filed by Byrn was dismissed on demurrer, and the land was sold at sheriff’s sale on the 3d of May, 1849, when the appellee became the purchaser. After which, he- instituted his action as above stated.

We shall notice first the question which is presented in limine; a determination of which may obviate the necessity of further inquiry.

The question is this, Does the statute referred to supply a remedy for the recovery of the possession of land, by a party claiming title thereto as the vendee at sheriff’s sale?

If it do not, the proceedings were erroneous, and the judgment must be reversed.

By the recovery of his judgment, the appellee was invested with no right of property in or title to the land in controversy. The entire operation of the judgment was the creation of a lien upon the land. It vested in the appellee a right of satisfaction of his debt out of the lands of his judgment debtor, in exclusion of every lien'or demand of inferior dignity or of junior date. Subject to this right, the debtors remained the owners of the fee, with the full power of disposition. Before the levy of the execution, the land was twice conveyed; and the last purchaser of the freehold died in the possession of the premises before any right of property or title was acquired by the appellee.

On the death .of the tenant of the freehold, the land descended and vested in his heirs at law. Nine years had elapsed from the date of the conveyance to Ross to the date of the sale under which the appellee claims title, during which period the successive and undisputed owners of the freehold remained in possession of the land.

It is manifest, that if the remedy for an unlawful detainer is applicable to this case, it is equally applicable in all cases where the right of possession can be deduced from the right of property or title to the freehold.

In ejectment, nothing can be recovered but that for which the lessor of the plaintiff can make a valid lease. And his ability to do so is dependent upon his right of entry, and that rests upon the validity of his title. Hence, if the action of unlawful detainer is appropriate in all cases in which the detention is against the consent of the party having the right of entry or possession, no matter from what source it be derived, this action would be co-extensive with that of ejectment.

Could it have been the design of the legislature to vest an occasional tribunal with authority to administer one of the most intricate and difficult branches of the law ? It behooves us to be well convinced of the accuracy of our conclusions, before we should give to this statute so broad an operation.

Heretofore, in this State, the action of unlawful detainer appears to have been regarded as merely a possessory remedy, in which the title to the freehold was in nowise involved, and confined to cases where the litigants occupied the relation of landlord and tenant, with the single exception of vendor and vendee where the latter has entered under an agreement to purchase, and failing to comply with his contract, detains possession against the consent of the vendor.

The question as now presented, is one of first impression in this court; and we are referred to the case of Allen v. Gibson, 4 Rand. 468, decided under the statute of Virginia, passed in 1814, of which the statute of this State is a literal copy. That was a suit between a mortgagee and mortgagor. Allen had. mortgaged the premises in controversy to Gibson and another, by a deed which conveyed a joint estate to them. The deed contained a covenant, that the mortgagor should possess and enjoy the mortgaged premises, until default should be made in the payment of the money. Default was made; Gibson proceeded under the act; a verdict was rendered in his favor, and upon the removal of the case into the court of appeals, the judgment was affirmed.

We cannot regard this case as an authority in point. The distinction is an obvious one between the vendee at sheriff’s sale and the tenant in possession, who may hold adversely to the defendant in the execution, and the relation which subsists between the mortgagee and the mortgagor. In the case cited, the mortgagor, after condition broken in reference to the mortgagee, occupied the attitude of a tenant at sufferance. Powsely v. Blackman, Croke, Jac. 659; Moss v. Gallimore, Doug. R. 279; 4 Kent, Com. 155.

It is true that the learned judge, who delivered the opinion of the court in that case, did not base his decision on the ground, that after default made in the. payment of the money, Allen became a tenant at sufferance to the mortgagee; but upon a more extended construction of the statute, by which the remedy provided by it was applicable to all cases where a party holding the right of possession was kept out by the tenant or occupant of the premises, after his right had expired. "We cannot yield our assent to this construction.

The third section of the act provides, that, “ If any shall enter or shall have entered into any lands or tenements in .a case where such entry is lawful, and after the expiration of his right, shall continue to hold the same against the consent of the party entitled to the possession, the party so entitled, as tenant of the freehold, tenant for years or otherwise, shall be entitled to the like summary remedy,” &c.

This language .in its literal import can only be applied to cases of persons who shall have entered originally, by a title which conveys only a temporary or defeasible estate; or to-the representatives of such persons. The form of the complaint prescribed in the statute proceeds on this idea. It seems clearly to contemplate the redress of ah injury to the possession of one who once had possession of the land or premises withheld. The petition contains a prayer for the “ restitution of the possession” to the petitioner. This language is consistent and appropriate when applied to cases where the party seeks a restoration of the possession which he once had. It would be otheiwise if cases, where the party attempts to gain possession of land of which he never had the possession, were intended.

It is contended that the terms of the oath administered to the jury in these cases, and the form of the verdict when found in favor of the plaintiff, as well as the character of the final process which issues upon .a judgment for him, indicate that the remedy by this action was designed to be applied indiscriminately to all cases where the party holding the right to the possession was kept out against his consent by the party in possession.

In cases of forcible and unlawful entry under the statute, the writ which issues upon a judgment for the plaintiff, is-a habere facias possessionem; although in such cases there is in fact a restitution of the possession. The same writ issues on a judgment in an unlawful detainer. No inference therefore can be drawn from this fact, as to the intention of the legislature. And if there be in fact a repugnance between the third section which grants the remedy and designates the class of persons who shall be entitled to it, and those against whom it may be enforced, and the terms of the oath administered to the jury impanelled to try the issue, we apprehend that the former should govern.

If it be conceded that the remedy provided, is not limited to cases where the party in possession has originally entered under a title which gives only a temporary or defeasible estate, or where the relation between the plaintiff and defendant may .be considered in law that of landlord and tenant; but that it was designed to be applied to all cases, where the plaintiff shall assert a right to the possession against the occupant of the premises, the remedy of unlawful detainer would be as broad and comprehensive as that by ejectment; for in no case could the plaintiff be the owner of the right to the possession, unless the right of the tenant in possession, if it ever existed, had expired.

In all proceedings under the statute, if this construction be adopted, “ the case,” as is said in Allen v. Gibson, “ would be open to the introduction of all sorts of evidence.” Hence, although the issue is one in respect simply to try the right of possession, the real subject of adjudication might be the merits of the title.

Leaving out of view the injury which might result from the incapacity of a court thus constituted, to determine the intricate questions arising out of conveyances of real estate, this interpretation produces an inconsistency in the provisions of the act. It is inconsistent to assume that the court and jury shall have the right and be required to adjudicate upon the merits of the title, when the act itself expressly declares that no judgment in an action of unlawful detainer shall bar any writ of ejectment or writ of right between the same parties, and that the verdict in such cases shall not be conclusive of any fact found therein, in any action of trespass, ejectment, or writ of right between the same parties.

But if the act be construed to give merely a possessory remedy, where the subject-matter at issue is the mere naked right to the possession, these provisions seem reasonable and consistent.

The substance of the English statutes in reference to forcible entries and detainers, from 5 Rich. 2 to 21 James 1, was incorporated into the act of the Virginia legislature of 1789. This statute was remodelled by the act of 1814, of which the statute of this State on the same subjects is a copy; making it a civil remedy for the immediate recovery of possession in certain cases, even where no force had occurred.

The State of Kentucky, in framing her statute on the same subjects, appears to have followed more closely the plan of the act of 1789. 1 Stat. Laws of Kentucky, 725. It does not, however, materially differ from our own, although in terms the remedy provided by the former, applies only to cases of forcible entry and detainer, and not to unlawful detainers. For by the 16th section it is declared, that “ If a tenant at Will after the expiration of the will of his landlord, or other tenant after the expiration of his term in the premises, refuse to restore possession to his landlord, he shall be adjudged guilty of a forcible detainer, and may be proceeded against accordingly.” And by the 17th section, any entry into lands against the will, or without the assent of the person who at the time of such entry may have the possession in fact of the premises into which such entry may be made, is declared to be a forcible entry within the meaning of the act.

In proceedings instituted under this statute, the courts of Kentucky appear uniformly to have held, that the estate or merits of the title were not the subject of investigation; but that, in these proceedings, the subject-matter at issue was the mere naked right to the possession. Mattox v. Helm, 5 Litt. 186; Chiles v. Stephens, 3 Mar. 345. So limited is the operation of the remedy given by the statute, that on the trial of issues in these proceedings, their courts hold, that title-deeds are inadmissible to prove a right of entry or of possession. They may, however, be introduced as evidence to establish boundaries, or to show the extent of possession. Beauchamp v. Morris, 4 Bibb, 312; Ib. 501.

The adjudications of the courts of Kentucky, made upon a statute similar to, and having the same objects in view with that of this State, are entitled to consideration in determining this question; especially, as it has never been adjudicated upon in this court.

As far, however, as the decisions of this court have proceeded, in reference to this question, they are in conformity with those of Kentucky.

In the case of Loring v. Willis, 4 How. 383, this court held, that unlawful detainer was a mere possessory action in which the title of the parties to the land is not involved.

The decision in the case of Rabe v. Fyler, 10 S. & M. 441, was cited by counsel for the appellee, and relied on as a departure from the rule recognised in the preceding case. We do not so understand it. In Rabe v. Fyler, proof was introduced, showing that Rabe had held possession of the premises in controversy, as tenant of the Agricultural Bank. Fyler was the grantee of the bank, by a deed of conveyance constituting him a trustee for certain purposes, and as such had succeeded to the rights, and had taken the place, of Rabe’s landlord. Hence the introduction of the deed to Fyler, in connection with proof of Rabe’s attornment to him,’was perfectly proper, under the circumstances. Not, however, for the purpose of proving title in Fyler, and thence deducing his right of possession; but to establish the fact, that the relation of landlord and tenant existed between them. When that relation was proved to exist, it cut off all inquiry to the title of Fyler.

The case of Spear v. McKay, Walker’s R. 265, proves only that it was the understanding of the supreme court, that in certain cases a party holding the right of possession might recover in an action of unlawful detainer, although he never had possession in fact of the land. This is undoubtedly true. The case of Rabe v. Fyler is one of that character. And it is settled in Kentucky, where the statute in terms applies only to cases of landlord and tenant, where the latter holds over, that the heir, without having first reduced the premises into possession, may maintain a writ of forcible detainer against his ancestor’s tenant who holds over, and refuses to deliver possession after the expiration of his lease. Truby v. Foster, 2 Mar. 205. Also wherever the person in possession entered as tenant to those under whom the plaintiff' claims, the writ of forcible detainer may be sustained for holding over. 3 Ib. 150; 1 Mon. 129.

Upon a careful and deliberate examination of the whole subject, our conclusion is, that the remedy for an unlawful detainer was never intended by the legislature to be applied to the case of a vendee at execution sale, unless the party, in possession of the premises, against whom the right is asserted, or those under whom he claims, came into the possession originally, as tenant to the defendant in the execution.

■Hence the plaintiff in the court below, upon the facts admitted by the demurrer to the evidence, was not entitled to recover. The judgment will therefore be reversed, and judgment entered in this court in favor of the appellant. •