La.cy, Judge,
delivered the opinion of the court;
The assignment of errors presents but two questions for our consideration and decision.
1st, Was there error in the judgment and proceedings of the justices court ?
2d, Was the writ of certiorari rightfully issued, and had consequent ly the circuit court jurisdiction to try the cause.
We will examine and determine the last of these questions first.
By reference to the statute regulating the proceedings in actions of forcible entry and detainer, approved August 19th, 1813, Ark’s D. 262, it will be seen that no appeal is allowed from the judgment of the justices, but that the proceedings may be removed by certiorari, into the circuit court holden for the county in which the cause is tried and may be there set aside for irregularity. It is very evident where there is any irregularity in the proceedings of the justices, that the cause may be removed by certiorari, for the words of the act, are express and positive upon the subject, and admit of no doubt or latitude of interpretation. In this case, the certiorari is issued by the clerk under the order and by the direction of the judge of the circuit court in vacation, and it must be conceded that a writ issued by the clerk under the express order, and by the authority of the judge, stands precisely in the same situation as if it was issued by the judge himself. — ■ The record that was produced in the circuit court purports to be a bill of exceptions, filed in the trial before the justices, setting out the proof of the plaintiff’s cause of action, which was admitted to go to the jury, and also the testimony offered by the defendant, which was ex-eluded from their consideration. Although it is called a bill of exceptions, and is regularly signed by the justices, still the court can regard it in no other light, than a mere record of the fads that transpired •during the trial, and as such the transcript was rightfully removed to the circuit court, but it is not a bill of exceptions according to the legal •definition'of that term, for the statute organizing the justices court gives ■no authority to take a bill of exceptions to the opinion or judgment of the justice’s court.
■The other assignment presents but one question, which is, was the decision of the Circuit Court right in reversing the judgment of the •justices’ court, and remanding the cause to the justices’ court, to be proceeded in according to the instructions there given. Before entering into an examination of the question, it is considered necessary and proper to point out the similarity and difference between an action of ejectment, and that of a writ of forcible entry and detainer, as as.regulated by our Statute. In every complete title to lands, two things are necessary — the possession or seizin, and the right or title to 4he property claimed; or, as Fleta expresses it, the juris el cesinas con-junctio. Now, if the possession has been severed from the property, or the right of possession, the, party injured, according to the circumstan- ■ ces of the case, has an appropriate remedy for the injury sustained. — ■ The ancient remedy was by a writ of entry or assize, which were actions merely possessary,only serving to regain the possession whereof the demandant had been unlawfully disseized by the tenant in possession, and this without any prejudice to the right of ownership in the soil. Awrit of entry only disproved the title in the tenant, by showing the unlawful commencement of his possession: Whereas, an assize proves the defendant’s title, by showing his or. his ancestors possession ■or title. To these remedies the writ of ejectment succeeded. A writ •.of ejectio firmas, or an action of trespass in ejectment, lieth on lands or tenements that are let for a term of years, and afterwards the lessor, •reversioner, remainder man or any stranger, doth eject or oust the lessee Of his term. 3 Black. Com. 158. In this case he shall have his writ of ejection to call the defendant for entering on the lands so demised to the plaintiff for a term not yet expired,' and ejecting him.
•If the ouster was committed by a mere stranger, without any title to:the land, the lessor might anciently by a real action recover possession of the freehold; but the lessee had no other remedy against the •ejector but in damages, by the writ of -ejectment for the trespass com-Blitted. And when the courts of equity began to oblige the ejector to • make a specific restitution of the lands to the party immediately injured, courts of law also adopted.the same method of doing com-píete justice; and, in the prosecution of the writ of ejectment, intro-troduced a species of remedy not warranted by the original writ, and gave judgment to recover the term, as well as the damages, and issued a writ of possession. This remedy seems to have been settled early in the reign of Edward IV, though it first began to be applied to the principles of trying the title to lands about the time of Henry VII, and since the disuse of real actions, this mode of proceeding has become the usual method of determining the title to lands and tenements. When, therefore, a lessor hath a right of entry into lands, which is wrongfully withheld from him, he makes a formal and fictitious entry on the premises, and, being so in possession, seals and delivers the lease to some third person or lessee; apd, having thus given him entry, leaves him in possession of the premises.
Tlie lessee is presumed to stay upon the land till he who held the previous possession, enters and ousts him; and for this injury the lessee is entitled to his action of ejectment against the tenant or casual eject- or: and in order to maintain the action the plaintiff, in case any defence is made, must make out his cause by proving title, lease, entry and ouster. First, he must show a good title in the lessee, which brings the matter of right before the court; secondly, that the lessor being seized, did make him the lease for the term; thirdly, that the lessee took possession in consequence of the lease; and lastly, that the defendant ousted or ejected him. And when these facts are proved, he shall have a judgment to recover his term and damages; — and also is entitled to his writ of possession, which the sheriff is bound to execute by delivering him peaceable possession of his term.
This is the regular method of bringing an. ejectment in which the title of the lessor comes collaterally and incidentally before the court, in order to show the injury done to the lessee by the ouster committed; and as much trouble and formalitywero found to attend making actual lease, entry and ouster, and for a more easy and natural method of trying the title by writ of ejectment, where there is an actual tenant in possession, Lord Chief Justice'Ralle, during the exile of Charles ■ II, invented a string of legal fictions, which dispensed with the actual lease, entry by the- plaintiff, and o¡;=ter by the defendant, and required the party, when he entered into t.l.n common consent role on notice from the casual ejector, to admit these three essential requisites to have been complied with, and confined the proof generally to the mere title of the lessor. 2 Starkie’s Ev. 289; Morris vs. Landrum, 1 Dallas, 67.
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La.cy, Judge,
delivered the opinion of the court;
The assignment of errors presents but two questions for our consideration and decision.
1st, Was there error in the judgment and proceedings of the justices court ?
2d, Was the writ of certiorari rightfully issued, and had consequent ly the circuit court jurisdiction to try the cause.
We will examine and determine the last of these questions first.
By reference to the statute regulating the proceedings in actions of forcible entry and detainer, approved August 19th, 1813, Ark’s D. 262, it will be seen that no appeal is allowed from the judgment of the justices, but that the proceedings may be removed by certiorari, into the circuit court holden for the county in which the cause is tried and may be there set aside for irregularity. It is very evident where there is any irregularity in the proceedings of the justices, that the cause may be removed by certiorari, for the words of the act, are express and positive upon the subject, and admit of no doubt or latitude of interpretation. In this case, the certiorari is issued by the clerk under the order and by the direction of the judge of the circuit court in vacation, and it must be conceded that a writ issued by the clerk under the express order, and by the authority of the judge, stands precisely in the same situation as if it was issued by the judge himself. — ■ The record that was produced in the circuit court purports to be a bill of exceptions, filed in the trial before the justices, setting out the proof of the plaintiff’s cause of action, which was admitted to go to the jury, and also the testimony offered by the defendant, which was ex-eluded from their consideration. Although it is called a bill of exceptions, and is regularly signed by the justices, still the court can regard it in no other light, than a mere record of the fads that transpired •during the trial, and as such the transcript was rightfully removed to the circuit court, but it is not a bill of exceptions according to the legal •definition'of that term, for the statute organizing the justices court gives ■no authority to take a bill of exceptions to the opinion or judgment of the justice’s court.
■The other assignment presents but one question, which is, was the decision of the Circuit Court right in reversing the judgment of the •justices’ court, and remanding the cause to the justices’ court, to be proceeded in according to the instructions there given. Before entering into an examination of the question, it is considered necessary and proper to point out the similarity and difference between an action of ejectment, and that of a writ of forcible entry and detainer, as as.regulated by our Statute. In every complete title to lands, two things are necessary — the possession or seizin, and the right or title to 4he property claimed; or, as Fleta expresses it, the juris el cesinas con-junctio. Now, if the possession has been severed from the property, or the right of possession, the, party injured, according to the circumstan- ■ ces of the case, has an appropriate remedy for the injury sustained. — ■ The ancient remedy was by a writ of entry or assize, which were actions merely possessary,only serving to regain the possession whereof the demandant had been unlawfully disseized by the tenant in possession, and this without any prejudice to the right of ownership in the soil. Awrit of entry only disproved the title in the tenant, by showing the unlawful commencement of his possession: Whereas, an assize proves the defendant’s title, by showing his or. his ancestors possession ■or title. To these remedies the writ of ejectment succeeded. A writ •.of ejectio firmas, or an action of trespass in ejectment, lieth on lands or tenements that are let for a term of years, and afterwards the lessor, •reversioner, remainder man or any stranger, doth eject or oust the lessee Of his term. 3 Black. Com. 158. In this case he shall have his writ of ejection to call the defendant for entering on the lands so demised to the plaintiff for a term not yet expired,' and ejecting him.
•If the ouster was committed by a mere stranger, without any title to:the land, the lessor might anciently by a real action recover possession of the freehold; but the lessee had no other remedy against the •ejector but in damages, by the writ of -ejectment for the trespass com-Blitted. And when the courts of equity began to oblige the ejector to • make a specific restitution of the lands to the party immediately injured, courts of law also adopted.the same method of doing com-píete justice; and, in the prosecution of the writ of ejectment, intro-troduced a species of remedy not warranted by the original writ, and gave judgment to recover the term, as well as the damages, and issued a writ of possession. This remedy seems to have been settled early in the reign of Edward IV, though it first began to be applied to the principles of trying the title to lands about the time of Henry VII, and since the disuse of real actions, this mode of proceeding has become the usual method of determining the title to lands and tenements. When, therefore, a lessor hath a right of entry into lands, which is wrongfully withheld from him, he makes a formal and fictitious entry on the premises, and, being so in possession, seals and delivers the lease to some third person or lessee; apd, having thus given him entry, leaves him in possession of the premises.
Tlie lessee is presumed to stay upon the land till he who held the previous possession, enters and ousts him; and for this injury the lessee is entitled to his action of ejectment against the tenant or casual eject- or: and in order to maintain the action the plaintiff, in case any defence is made, must make out his cause by proving title, lease, entry and ouster. First, he must show a good title in the lessee, which brings the matter of right before the court; secondly, that the lessor being seized, did make him the lease for the term; thirdly, that the lessee took possession in consequence of the lease; and lastly, that the defendant ousted or ejected him. And when these facts are proved, he shall have a judgment to recover his term and damages; — and also is entitled to his writ of possession, which the sheriff is bound to execute by delivering him peaceable possession of his term.
This is the regular method of bringing an. ejectment in which the title of the lessor comes collaterally and incidentally before the court, in order to show the injury done to the lessee by the ouster committed; and as much trouble and formalitywero found to attend making actual lease, entry and ouster, and for a more easy and natural method of trying the title by writ of ejectment, where there is an actual tenant in possession, Lord Chief Justice'Ralle, during the exile of Charles ■ II, invented a string of legal fictions, which dispensed with the actual lease, entry by the- plaintiff, and o¡;=ter by the defendant, and required the party, when he entered into t.l.n common consent role on notice from the casual ejector, to admit these three essential requisites to have been complied with, and confined the proof generally to the mere title of the lessor. 2 Starkie’s Ev. 289; Morris vs. Landrum, 1 Dallas, 67. It was resolved by all the judges in the court of King’s Bench,, that a writ of ejectment, and the proceedings under it, are judicially-to be considered, as the fictitious form of action really brought for the lessor of the plaintiff against the tenant in possession, invented under the control and power of the court, in many respects to force the parties-to go to trial upon the merits,, without being entangled with the nicety of- pleading, on either side. >It is founded on the same principle as the ancient writ of assize, being calculated to try the mere possessary title to an estate, and has succeeded to those of real actions, because the form of proceeding is entirely a fiction.
It is in the power of the court to direct its application to prevent fraud', and to ascertain the proof of the title. 3 Black. Com. 162.
It is true, as contended in argument for the defendant in error, Chat the action of ejectment is in its nature possessary, and in some instances it may be brought merely for the recovery of the possession; but then, in order to enable a party bringing it to recover, a right of entry or a right of possession, which are convertible, must be proved.
It is an inflexible rule that the lessor or the plaintiff must recover by the strength of his own legal title, and not by the weakness of his adversary’s. And that an equitable estate will not enable the plaintiff to support an ejectment at common law; and that the tenant in possession may defeat the lessor’s title by showing an outstanding, paramount title in a stranger, or third person. Robertson vs. Campbell, 3 Wheat. 212; Carson vs. Boudinot, 2 Wash. C. C. R. 35; Adams on Ejectment from page 294 to 315 and notes; 1 P. Williams, 671.
That the tenant in possession can show his landlord’s term has expired, or his right of entry extinguished, is well settled, both upon reason, and authority. And although the action is in ynany respects, and in. its nature possessary only, still the right of possession depends on the right of property; and the title of the lessor in general constitutes the main ingredient in the action. The plaintiff has no right to the possession, if he cannot show title in the lessor; for upon proving that fact depends his right of recovery, and consequently his right of possession. He is at liberty in any action at law to show that the interest which the lessor had in the land at the commencement of the tenancy has since expired, ,,£ whether by operation of law, by effect of time, or by his own act.” England vs. Slade, 4 T. R. 682; Doe vs. Ransbothane, 3 M. & S. 516; Adams, 247.
The principles as laid down by the authorities here cited, are unquestionably true in regard to actions of ejectment. But the enquiry then naturally arises at this stage of the investigation, how far are they applicable to the proceedings in actions of forcible entry and de-tainer, as regulated by our Statute.
If one turns or keeps another out of possession forcibly, where the latter has title, it is an injury both of a civil and a criminal nature. — ■ The evil was remedied by the Statute of 5th Richard IT, c. 8, which authorized the party in a peaceable manner to enter upon the land, and reclaim the possession or immediate restitution. The criminal injury or public wrong was punishable with the penalty the law affixed for a breach of the peace.
. And by the Statute of 8th Henry VI, c. 9, upon complaint ,made to any justice of the peace for a forcible entry with strong hand, on1 lands or tenements, or a forcible detainer after peaceable entry,5he shall try the truth of the complaint by jury, and, upon force found, shall restore the possession to the party put out. And by 3Isf of Elizabeth, c. 11, this mode of redress does not extend to such persons as have continued in peaceable possession after three years or upwards. These several acts form the origin of the present remedy of forfcible entry and detainer, as adopted in most of the States of the Union. These acts were passed to prevent individuals from doing themselves right by force, and to protect the persons in the .peaceable possession without authority of law. 4 Black. Com. 148; 1 Hank, 274. The construction of the English Statutes by their courts, and, which had been followed by some of the American decisions, confined the remedy to cases where the relater was ousted of his freehold or a term of years, or where he had lawful right to the possession; and the consequence was that in every other instance of forcible entry and detainer, the wrong-doer, though he entered with force and without right, was preferred to the quiet occupant thus dispossessed: for if the former could show on the trial of the cause, that the latter had no estate within perview of the acts, he was entitled to a verdict. These, decisions proceed upon the ground, that as the Statute requires an estate in the pemises by express terms; that he who cannot show a right of entry, or a right of possession, cannot maintain the action. For the right of action is only given to the party having a lawful entry or right of possession. Henee it necssarily follows, that any thing that would show the term' of the lessor had expired, or had terminated, would defeat the action of forcible entry and detainer. And in this instancfi it is like the writ of ejectment. In the actions under the English practice, it was necessary to show or prove title to enable the plaintiff tp recover the possession. But our Statute is essentially different in this particular.. After pointing out the manner of proceeding in the case, the act declares, among other things, “when any person shall wilfully, and without force, hold over any lands, tenements, or other possession, after the determination of the time for which they were demised or let to him,, or the person under whom he claims; or when any person wrongfully and without force by disseizin shall obtain and continue in possession-’ of any lands, tenements, or other possessions, and' after demand made in writing for the delivery thereof by the person having the legal right' to such possession, his agent or attorney shall refuse or neglect to quit" such possession, upon complaint thereof in writing to two justices of' the peace, as aforesaid, the said justices shall proceed to hear and determine the same in like manner as in cases of forcible entry and de-tainer, and issue a writ of restitution accordingly.” See Arkansas Dig.p. 262, sec. 7. By a careful examination of the section, it will be seen that it embracess classes of cases, which are wholly distinct and' independent of each other, and to which the remedy applied is essentially different in every important particular. The latter clause of the section has exclusive reference to cases where the defendant or tenant in possession has entered by disseizin, and in such cases, if he hold over, notice must be given by him to quit; and the action of forcible entry and detainer cannot be maintained unless the plaintiff has a legal right to the possession. This right of action is made to depend by the Statute upon his legal interest, and unless he can establish that fact, he has no right to the possession. And consequently, if the defendant can show that the term of the demise has expired before the co'mmencement of the suit, or that the plaintiff never had any lawful-right to the possession, it will form a complete bar to the action. It is perfectly competent for the defendant to traverse the plaintiff’s right to the possession; and if, on the trial he disproves it, he of .course destroys the lawfulness of his possession, or his right of entry. The writ of restitution is given by the ¡Statute on the express condition of the right of property or possession, and if this right is not proved by the plaintiff, he cannot be invested with the possession. In this respect,, ■jour Statute coincides with the rule of the common law in like cases, and also with the acts of many of our sister States on the subject.— The principle upon which the rule is founded is this: that the disseizor acquired by his disseizin a lawful possession, which the rule will not permit to be interrupted or overthrown, unless the party claiming possession man show he is rightfully entitled to it.
The first part of this clause of the seventh section applies solely and exclusively to persons, who without force wilfully held oyer any land, tenements, or other possession, after the term for which tliey were leased or let to them, has exphed. This is the case where a tenant •comes lawfully and peaceably into possession by lease or otherwise, and then refuses to deliver it up according to the terms or effect of the lease or agreement. In such a case, the Statute does not contemplate ■that the plaintiff shall show any title whatever; for the right to the •possession does not collaterally or incidentally come into question.— The only matter of controversy between the parties is, to whom does the possession properly belong ? It is not a trial as to the right of property, or right of entry, but is merely as to the possession; and if the plaintiff show the possession to be his, though the right of possession may be in one person, and the right of property in another, still he is entitled to a verdict, and to have his writ of restitution; for it is the possession he claims, and- it was that the defendant agreed to surrender to him on the expiration of the lease. There are no words or terms in the act showing the plaintiff must prove an estate in the premises; but, on the contrary, the Statute both by express language, and by reasonable intendment, clearly indicates that possession alone, in the absence •of all right, will entitle a party to maintain an action of forcible entry and detainer when there is a wilful holding over by the tenant who entered peaceably, and by virtue of a lease or agreement, into the land. A party peaceably in the possession at the time of the forcible entry, or in the constructive possession at the time of holding over, is entitled to proceed under the Statute in an1 action of forcible entry and detainer, although he is neither owner of a freehold, or possessed of a term of years, or has any lawful right of entry to the land.
The title of the land is not in issue where there is an unlawful holding over by a tenant put in possession by his landlord. This rule is founded both on policy and justice, and is sustained by the highest authority. The tenant who is put in possession, is estopped by his own act or deed from denying the landlord’s title; for by accepting the , lease or deed, he has admitted it, and it does not afterwards lav open ’ , 7 ~ r to say the lessor had no title. For if the law permitted him to do so, the tenant might perpetrate a fraud in first obtaining the possession, and in afterwards transferring to another, to the prejudice of the rightful owner; for a mortgagor will not be allowed to question his own title at the time of the mortgage. In legal contemplation there is but one possession, which continues during the entire term, and which is the possession of the landlord, and that the tenant cannot be permitted . to deny; for, by accepting the possession, he has estopped himself from that right. If these positions be true, and that they are seems self-evident to the court, then it necessarily follows that the decision of the Justices’ Court, in excluding the defendant’s testimony from the jury that went to show that the plaintiff had' no right or title to the lots in question, was correct; and consequently the judgment improperly refused by the Circuit Court. The plaintiff proved on the trial that the defendant acknowledged his title to the property and his right of possession by a covenant, regularly executed between the parties, in which the defendant bound himself to give up and surrender the possession to the plaintiff by the 10th day of October, 1837; and that after his lease had expired, he wilfully held over the possession, and refused to surrender it up according to his agreement. This was all that was necessary for the plaintiff to prove, and when he had established the fact, the defendant was his tenant under a written agreement or covenant, his right of action accrued, and on the trial of the forcible entry and detainer, it was not competent for the defendant to give any testimony whatever in impeaching his title; for, by his own act, he was estopped from so doing.
The opinion of the Circuit Court is manifestly erroneous, not only in setting aside the judgment of the Justices’ Court, but also in remanding the cause to be proceeded in according to law in that court.
The Circuit Court professes no power or authority to make such an order, and of course the entry was null and void. For the Justices’ Court was dissolved after they had tried the cause and awarded the writ of restitution. It was a court of peculiar jurisdiction conceived for a special and given purpose; and when that object has been accomplished, the commissions of the justices, by their own limitation, expired. The judgment of the Circuit Court must, therefore, be reversed with costs, the cause remanded to be proceeded in according to law, which is, that the judgmentof the Justices’ Court be affirmed with costs.