Glenn v. Caldwell

74 Miss. 49

• Court: Mississippi Supreme Court
• Decided: March 15, 1896
• Status: Published

Opinions

Coox’ER, C. J.,

delivered the opinion of the court.

The single question presented by this appeal is whether a purchaser of land at execxxtioxx sale may maintain the action of unlawful entry and detainer against the tenants of the defendant in execution. The court below was of opinion that he could not, and, on motion, dismissed the action.

We think he may. The statute, code of 1892, § 4461, provides that £ £ anyone deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and any landlord, vendor, vendee, mortgagee, or trustee, or cesi/ioi que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, vendor, mortgagor, grantor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed.”

The only inquiry involved is whether the purchaser at execution sale is an assign of the defendant in execution within the meaning of the statute. It is of easy solution, and, we think, free from doubt. Both the spirit of the statute and its letter embrace such purchaser. At the common law, forcible entry was an offense, and punishable as such. Our statute enlarges the remedy by conferring upon the person whose possession is unlawfully invaded a summary action for the recovery of possession, and this right is given not only to the original owner, but to his legal representative or assigns. Another class of persons, other than those who enter by force, fraud, etc., are subjected to the action — namely, those whose entry is lawful under a contract, express or implied, but who remain in possession after expiration of their right to hold; and, as-against these, the right is given also to the original owner, his. legal representative or assigns. The statute views with equal disfavor him who enters by force, fraud, stratagem, intimida■tion or stealth, and him who, entering lawfully under contract, refuses to redeliver possession according to that contract.

As against any person of the enumerated classes, we can perceive no reason why the language of the statute should receive a narrow and restricted construction. Indeed, there is little room for construction; the words are plain and unambiguous. The word assigns ‘£ comprehends all those who take immediately or remotely from or under an assignor, whether by conveyance, devise, descent, or act of law.” Anderson’s Law Dictionary, title Assign; Baily v. DeCrespigny, L. R., 4 Q. B., 186; Brown v. Association, 34 Minn., 547.

■ There is nothing in the context which limits the meaning of the word assigns to those who take under an assignment by contract as distinguished from those who take under an assignment by operation of law, for the right is given to the legal representatives and assigns, and legal representatives clearly mean those who take by operation of law. But little light is afforded by reference to authorities from other states. The right is a statutory one, and decisions construing statutes different from ours can serve but little purpose in considering our statute.

The question is whether our statute gives the right. If the legislature had designed that the remedy should be limited to assigns by contract, it would have been a simple matter to have said so, but, instead of this, through three codes they have retained the word assigns, and this, in its legal significance, includes as well assigns by operation of law as those by contract.

Judgment reversed and cause remanded.