Dunlap v. Moose

135 S.W. 824, 98 Ark. 235, 1911 Ark. LEXIS 92

• Court: Supreme Court of Arkansas
• Decided: March 6, 1911
• Status: Published

Opinion

Kirby, J.,

(after stating the facts). The action of unlawful detainer is only to decide the right to the immediate possession of lands and tenements, and not to determine the right or title of the parties to or in them. A tenant cannot dispute the title of his landlord while he remains in .possession under him, nor acquire possession from the landlord by lease and then dispute his title, but must first surrender possession and bring his action. Washington v. Moore, 84 Ark. 220.

The portion of the defendant’s answer stricken out might have been, if true, a defense to an action of 'ejectment for the lands, and he is not precluded by judgment against him in unlawful detainer for the possession from setting up such facts in a proper suit, if they constitute a cause of action. The court committed no error in striking out that portion of the answer. The paragraph of the answer not stricken out put in issue the right to the possession, and appellant conceded plaintiff’s right to recover thereon, under the facts.

The judgment is affirmed.