PRATT, Justice.
J. G. Woodbury is a resident of California. He was not present in Utah at the times hereinafter mentioned. On the 28th day of November, 1986, he rented to John E. Steele and Zephys L. Steele, his wife, certain premises located in Delta Townsite, Millard County, Utah. This was evidenced by a written instrument reading as follows:
“To the Sheriff of Millard County, Utah:
“This is to acknowledge that pursuant to an Alias Writ of Possession issued out of the District Court of Millard County, Utah, in the case of J.
G. Woodbury, plaintiff
vs.
John E. Steele and Zephyr L. Steele, defendants,
on the 14th day of November, 1936, I have this day voluntarily yielded possession to the said plaintiff to the following described property in Delta, Utah, to-wit:
“ ‘The North half of Lot 1, in Block 79, Plat “A” Delta Townsite Survey in the County of Millard, State of Utah.’
“This will further acknowledge that I now hold possession of the said property as a tenant of the said J. G. Woodbury for a rental of $16.00 per month. The payment of said rental being herewith handed to you, the said sheriff.
“It being understood that on or before 30 days from the date hereof that I shall voluntarily vacate said premises.
“Dated at Delta, Utah, this 28th day of November, 1936.
“(Signed) John E. Steele
“Witness:
“Dudley Crafts.”
The Steeles paid two months’ rent. This carried them to, and including, January 27, 1937. On this last day, it is said that one Ben Bunker took possession of the property under and pursuant to a tax deed arising out of delinquent drainage district taxes. The record is uncertain as to whether Steeles were still in possession of the premises or had abandoned them. However, whichever it was, the Steeles, it is claimed, on that same date rented the premises from Bunker and re-entered or remained in occupancy if they had not left. They gave no notice to Woodbury of a repudiation of his léase. These facts subsequently became known to the latter, who made demand for the premises. His demand was refused, and he instituted this forcible detainer action against Bunker, the Steeles, and some other alleged tenants of Bunker, E. A. and Flora Brown. The Browns defaulted, so we drop them from the picture.
Bunker answered and set up as an affirmative defense and as a counterclaim, his tax title and right to possession thereunder, seeking to have the title to the property quieted in himself. The Steeles answered that they were tenants of Bunker. Both denied an unlawful entry as against Wood-bury. The latter demurred to these answers and moved to strike them on the ground that they were not proper defenses to this action. The demurrers were overruled and the motions denied. The case proceeded to trial upon facts stipulated as above, but without prejudice to Woodbury’s contentions.
The lower court quieted title in favor of Bunker, allowing the Steeles to remain in possession as his tenants. Wood-bury has taken this appeal. There are two main questions involved in the case: (1) Was such an affirmative defense and counterclaim proper as against an action of forcible detainer; and (2) were Bunker and the Steeles guilty of an unlawful entry as against Woodbury?
(1) We are of the opinion that the case of
Paxton
v.
Fisher,
86 Utah 408, 45 P. 2d 903, 906, is decisive of this first question so far as the facts as pleaded in this case are
concerned. The authorities are in conflict as to right of possession and title being a proper defense in every forcible detainer action. Mr. Justice WOLFE has covered that subject in his concurring opinion herein. We refer the reader to that discussion.
Section 104-60-2, R. S. U. 1933, is our forcible detainer statute. Paragraph (2) thereof, is applicable to the facts as pleaded in this case. It reads:
“Every person is guilty of a forcible detainer who either: * * *
“(2)
*
* * during the absence of the occupants of any real property, unlawfully enters thereon, and, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who within five days preceding such unlawful entry was in the peaceable and undisturbed possession of such lands.”
Speaking of the purpose of this section, Mr. Justice Mof-fat in the prevailing opinion of the Paxton-Fisher case says this:
“* * * The purpose of the statute is to provide a speedy remedy, summary in character, to obtain possession of real property._EveB--rightful owners should not take the law into their own hands and proceed to recover possession * * * during the absence of the oceupahts of any real property.”
(2) In his concurring opinion in the Paxton-Fisher case, Mr. Justice Wolfe defines “unlawful entry” in this way:
“* * * Tjm word ‘unlawful,’ as used in this section, means unlawful with respect to the relations between the plaintiff and defendant. See
Dutcher
v.
Sanders,
20 Cal. App. 549, 129 P. 809. In
Carteri
v.
Roberts,
140 Cal. 164, 73 P. 818, 819, the court said:
‘“It is a necessary element to the cause of action here presented that the entry of the defendants upon the land should have been unlawful with respect to the relations between the defendants and the plaintiff.’
“The entry is unlawful in respect to the relation between the plaintiff and defendant whenever the defendant enters without the permission of the plaintiff. * * *”
There seems to be no controversy between the parties that this action is one in forcible detainer. Woodbury alleges: Abandonment of the premises by his tenants; his own peaceful possession thereof; entry of Bunker in his absence and without his permission; his demand for the premises and the refusal by Bunker and the Steeles to relinquish possession, the latter having been reinstated on the premises as tenants of Bunker; and finally, that he, Woodbury, has been in peaceful possession for
more
than five days immediately preceding the “unlawful entry”. (We have italicized the word “more” for the reason that the statute uses the word “within,” in the definition of an “occupant”. However, as
more
than five days includes the period of
within
five days, the error is not prejudicial.) In addition, Woodbury seeks damages of $250.00.
If, then, the stipulated facts support these allegations, Woodbury should recover — the demurrers and the motions being sufficient to dispose of the affirmative defense and counterclaim. But do they support the allegations?
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PRATT, Justice.
J. G. Woodbury is a resident of California. He was not present in Utah at the times hereinafter mentioned. On the 28th day of November, 1986, he rented to John E. Steele and Zephys L. Steele, his wife, certain premises located in Delta Townsite, Millard County, Utah. This was evidenced by a written instrument reading as follows:
“To the Sheriff of Millard County, Utah:
“This is to acknowledge that pursuant to an Alias Writ of Possession issued out of the District Court of Millard County, Utah, in the case of J.
G. Woodbury, plaintiff
vs.
John E. Steele and Zephyr L. Steele, defendants,
on the 14th day of November, 1936, I have this day voluntarily yielded possession to the said plaintiff to the following described property in Delta, Utah, to-wit:
“ ‘The North half of Lot 1, in Block 79, Plat “A” Delta Townsite Survey in the County of Millard, State of Utah.’
“This will further acknowledge that I now hold possession of the said property as a tenant of the said J. G. Woodbury for a rental of $16.00 per month. The payment of said rental being herewith handed to you, the said sheriff.
“It being understood that on or before 30 days from the date hereof that I shall voluntarily vacate said premises.
“Dated at Delta, Utah, this 28th day of November, 1936.
“(Signed) John E. Steele
“Witness:
“Dudley Crafts.”
The Steeles paid two months’ rent. This carried them to, and including, January 27, 1937. On this last day, it is said that one Ben Bunker took possession of the property under and pursuant to a tax deed arising out of delinquent drainage district taxes. The record is uncertain as to whether Steeles were still in possession of the premises or had abandoned them. However, whichever it was, the Steeles, it is claimed, on that same date rented the premises from Bunker and re-entered or remained in occupancy if they had not left. They gave no notice to Woodbury of a repudiation of his léase. These facts subsequently became known to the latter, who made demand for the premises. His demand was refused, and he instituted this forcible detainer action against Bunker, the Steeles, and some other alleged tenants of Bunker, E. A. and Flora Brown. The Browns defaulted, so we drop them from the picture.
Bunker answered and set up as an affirmative defense and as a counterclaim, his tax title and right to possession thereunder, seeking to have the title to the property quieted in himself. The Steeles answered that they were tenants of Bunker. Both denied an unlawful entry as against Wood-bury. The latter demurred to these answers and moved to strike them on the ground that they were not proper defenses to this action. The demurrers were overruled and the motions denied. The case proceeded to trial upon facts stipulated as above, but without prejudice to Woodbury’s contentions.
The lower court quieted title in favor of Bunker, allowing the Steeles to remain in possession as his tenants. Wood-bury has taken this appeal. There are two main questions involved in the case: (1) Was such an affirmative defense and counterclaim proper as against an action of forcible detainer; and (2) were Bunker and the Steeles guilty of an unlawful entry as against Woodbury?
(1) We are of the opinion that the case of
Paxton
v.
Fisher,
86 Utah 408, 45 P. 2d 903, 906, is decisive of this first question so far as the facts as pleaded in this case are
concerned. The authorities are in conflict as to right of possession and title being a proper defense in every forcible detainer action. Mr. Justice WOLFE has covered that subject in his concurring opinion herein. We refer the reader to that discussion.
Section 104-60-2, R. S. U. 1933, is our forcible detainer statute. Paragraph (2) thereof, is applicable to the facts as pleaded in this case. It reads:
“Every person is guilty of a forcible detainer who either: * * *
“(2)
*
* * during the absence of the occupants of any real property, unlawfully enters thereon, and, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who within five days preceding such unlawful entry was in the peaceable and undisturbed possession of such lands.”
Speaking of the purpose of this section, Mr. Justice Mof-fat in the prevailing opinion of the Paxton-Fisher case says this:
“* * * The purpose of the statute is to provide a speedy remedy, summary in character, to obtain possession of real property._EveB--rightful owners should not take the law into their own hands and proceed to recover possession * * * during the absence of the oceupahts of any real property.”
(2) In his concurring opinion in the Paxton-Fisher case, Mr. Justice Wolfe defines “unlawful entry” in this way:
“* * * Tjm word ‘unlawful,’ as used in this section, means unlawful with respect to the relations between the plaintiff and defendant. See
Dutcher
v.
Sanders,
20 Cal. App. 549, 129 P. 809. In
Carteri
v.
Roberts,
140 Cal. 164, 73 P. 818, 819, the court said:
‘“It is a necessary element to the cause of action here presented that the entry of the defendants upon the land should have been unlawful with respect to the relations between the defendants and the plaintiff.’
“The entry is unlawful in respect to the relation between the plaintiff and defendant whenever the defendant enters without the permission of the plaintiff. * * *”
There seems to be no controversy between the parties that this action is one in forcible detainer. Woodbury alleges: Abandonment of the premises by his tenants; his own peaceful possession thereof; entry of Bunker in his absence and without his permission; his demand for the premises and the refusal by Bunker and the Steeles to relinquish possession, the latter having been reinstated on the premises as tenants of Bunker; and finally, that he, Woodbury, has been in peaceful possession for
more
than five days immediately preceding the “unlawful entry”. (We have italicized the word “more” for the reason that the statute uses the word “within,” in the definition of an “occupant”. However, as
more
than five days includes the period of
within
five days, the error is not prejudicial.) In addition, Woodbury seeks damages of $250.00.
If, then, the stipulated facts support these allegations, Woodbury should recover — the demurrers and the motions being sufficient to dispose of the affirmative defense and counterclaim. But do they support the allegations?
There are two likely situations deducible from those facts. We shall designate them as A and B.
A. If, before Bunker entered the premises, Steeles had moved off and abandoned possession of the place, then the right to bring a forcible detainer action against a third party, for an unlawful entry under para. (2), Sec. 104-60-2, R. S. U. 1933, reverted to Woodbury, the landlord, because he is entitled to peaceful possession. Under such circumstances, Woodbury would be in the position of being temporarily absent from the property. Then the entry of Bunker and his tenants, the Steeles, if within five days of abandonment by the tenants of Woodbury, would be “unlawful” as to the latter.
B. But suppose Steeles did not abandon the premises, and were there when Bunker entered. The evidence is against any thought of their subsequently having abandoned the place to Bunker. In fact, after they had agreed to remain as his tenants, he left the place in their possession.
What is the nature of the entry upon the possession of a tenant, who permits that entry, as between the entrant and the landlord, where the tenant has not repudiated the tenancy by notice to the landlord?
Under such circumstances, it is our opinion that the entrant has not acquired possession of the premises. So long a,s the tenant remains in possession, his possession is that of the landlord, and he cannot by words or acts make his possession or that of one whom he permits upon the premises a possession adverse to the landlord.
Stagg
v.
Eureka Tanning & Currying Co.,
56 Mo. 317;
Houk
v.
Kirby Petroleum Co.,
Tex. Com. App. 65 S. W. 2d 496;
Yeam
v.
Dempsey,
55 N. D. 259, 212 N. W. 852. The entrant is no more than a permittee, the scope of whose rights upon the premises is limited by the permission given him and the term of the tenant’s lease. His entrance being by permission is not an unlawful entry, and therefore, he is not, except as hereinafter stated, the subject of an action of forcible detainer. But upon the expiration of the tenant’s lease, the tenant is subject to ouster by an unlawful detainer action (not forcible detainer) under and pursuant to Section 104-60-3, R. S. U. 1933; and, if so ousted, those who are on the premises with his permission may be ejected by the sheriff as well. In other words, the ouster of a tenant by such an action, ousts his family, servants, guests and such others as may be there by his permission. It terminates their right to be upon the premises. If they enter thereafter, their entrance is an unlawful entry as against the landlord, to whom peaceful possession has reverted, for the statutory five day period, upon the ejection of the tenant.
This brings us to the question of the disposition of the case. If the facts are as suggested under A above, they support the allegations of the complaint and Woodbury should recover. What if they are as suggested under B? Is it necessary to have the pleadings amended? We think not.
The circumstances of the case are peculiar. Steeles are repudiating their tenancy under Woodbury; they are claiming tenancy under Bunker; they agreed with Bunker to become his tenants; and they permitted him to enter upon the premises with the thought in mind that they would become his tenants. They undoubtedly believed that his tax title would protect them. We stated above that the tenant can not, by his words or acts, make his own possession, or that of him whom he permits upon the premises, adverse to the landlord. This presumes that the landlord is adverse to such action upon the part of the tenant. But what is there to prevent the landlord accepting that situation when confronted with it, and treating the continued possession of Bunker and Steeles as a forcible detainer? We see nothing.
It is our opinion that under such circumstances, Wood-bury may accept that repudiation and those acts on the part of the Steeles as a termination of the tenancy as of the time of the entry of Bunker. The tenancy being so terminated, possession lay in Woodbury, and Bunker’s entry and his occupation through his alleged tenants, the Steeles, after proper notice to vacate, constituted an unlawful entry as against, and a forcible detainer from Wood-bury, who in this case must through his former tenants, Steeles, be considered as having had occupancy within five days of Bunker’s entry.
Whether the facts fall under A or B, the plaintiff is entitled to recover under the circumstances and pleadings of this case.
The judgment and decree of the lower court is vacated and the case remanded for a determination of the question of damages. Costs to appellant.
MOFFAT, C. J., and LARSON and McDONOUGH, JJ., concur.