Price v. Olds

9 Kan. 66

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action of forcible entry and detainer. The plaintiff commenced the action before a justice of the peace. Judgment was rendered for the plaintiff. The defendant appealed to the district court. The case was there tried on an agreed statement of facts, and judgment was there rendered against the plaintiff and for the defendant. To reverse this judgment the plaintiff now brings the case to this court.

The agreed statement of facts showed that James E. Joy was the original owner of the land in controversy, holding the same by patent from the government of the United States; that he sold and conveyed said land to the Missouri River, Fort Scott & Gulf Railroad Company; that the said railroad company contracted to sell the same to the plaintiff; “that the plaintiff by the terms of said contract became and was possessed of all the rights of his vendor,” and that after-wards the defendant took possession of said land and resided on and occupied the same without any authority, and against the will of the plaintiff.

No question seems to have been raised upon the title of the plaintiff, or of his grantors. The agreed statement of facts shows nothing that any person could construe into an impeachment of Joy’s title, or of those holding tinder him. The only question that seems to have been raised is, whether the plaintiff who was entitled to possession of said land, but who does not seem to have ever had actual possession of the same, could maintain the action of forcible entry and detainer. "Wc think he could; and as the court below decided that he could not, we think the court below erred.

The law upon this question is properly expressed in § 159 of the justice’s act, (Gen. Stat., 809,) being the second section of Art. 13, entitled, “Forcible Entry and Detainer.” That section provides that: “Proceedingsunder this article maybe had in all cases * * * where the defendant is a settler or occupier of lands or tenements without color of title, and to which the complainant has the right of possession.” Neither this section nor any other section of the law provides that before the plaintiffs can maintain this kind of action he must have had actual possession of the property. All that seems to be necessary is that he should have the right of possession thereto.

The judgment of the court below is reversed, and cause remanded to said court with instructions to render judgment upon the agreed statement of facts for the plaintiff and against the defendant for restitution to the plaintiff of the property in controversy.

All the Justices concurring.