Obrázky stránek

is distinct from the notice to quit which is necessary to terminate the tenancy of a tenant from month to month. Both are required to establish a right of action against such a tenant. McDevitt v. Lambert, 80 Ala. 536; 2 So. Rep. 438 (1887).

§ 11. Pleadings-The Complaint.-As a general rule written pleadings are not required in courts of inferior jurisdiction, but in actions of forcible entry and detainer an exception to this rule is found in the law requiring the complaint to be in writing. The action being a statutory remedy existing wholly by virtue of legislative enactments, the rule in regard to the complaint differs widely in the different States. As a general proposition it may be stated that the complaint must contain all the essential requirements of the statute.' It is usually in the form of a declaration, though sometimes in that of an affidavit. It should set forth the venue and facts sufficient to give the court jurisdiction. It must contain the names of the parties, a reasonably certain description of the premises and the plaintiff's estate therein,' and an allegation that the defendant entered and unlawfully withholds the possession thereof from the plaintiff. The sufficiency of the complaint is in general governed by the rules of pleading.*


A mere recital that defendant was a tenant, and had been notified to quit three months before the expiration of the lease, is inadequate to entitle plaintiff to oust defendant from the premises. Hourner v. Witherill (Pa.), 10 Atl. Rep. 40.

In forcible entry and detainer in justice's court, a complaint is sufficient which avers that the defendant rented the premises of the plaintiff at $6.25 per month, payable in advance; that on a certain day there became due $6.25 on account of one month's rent from that day, and that since then the defendant has been unlawfully in possession of the premises because of the non-payment of said rent. McNatt v. Grange Hall Ass'n of Indian Creek Grange No. 828, P. of H. (Ind.), 27 N. E. Rep. 325 (1891).

Where the description of the premises in a complaint for forcible entry is shown by the testimony of a surveyor to be susceptible of being easily and definitely located, such description is sufficiently definite. Stillman v. Palis, 134 Ill. 534; 25 N. E. Rep. 786 (1890).

1 Clark v. Gage, 19 Mich. 507; Moore v. Del Volle, 28 Calif. 170; Jonsen v. Nabring, 50 Ala. 397; Ich v. Chilton, 26 Mo. 256; Simmons v. Marshall, 3 G. Greene (Iowa), 502.

2 Murphy v. Lucas, 2 Ohio. 255; Treat v. Bent, 51 Me. 478: Silvey v. Summer, 61 Mo. 253; Cairo, etc., R. R. Co. v. Wiggins Ferry Co., 82 Ill.

230; Grant v. Marshall, 12 Neb. 488; Nason v. Best, 17 Kan. 408; Sullivan v. Ellison, 8 W. Va. 308; Applegate v. Applegate, 16 N. J. L. 321; Klingen v. Smith, 84 Ind. 331.

3 Bliss v. Winston, 1 Ala. 344; Blaco v. Haller, 9 Neb. 149.

4 Clark v. Gage, 19 Mich. 507.



A complaint describing the premises as "the messuage or store-house and buildings of plaintiff, and the lot of land whereon the same is located," 15x32 feet, “situate in the township of .* * *, on the south side and edge of the south branch of Great Pond, and a short distance westward of the west line of Central avenue, which runs from Asbury avenue, in West Park, to said Great Pond," is sufficient, under the statute (Revision N. J., p. 440, § 7) requiring the complaint to specify the lands, etc., forcibly entered upon and detained. O'Hagen v. Crossman, 50 N. J. L. 516; 14 Atl. Rep. 752. In proceedings under Pub. St. Mass., C. 175, providing a summary process for recovering lands or tenements, the description of the premises in the writ as on a wrong street, is not fatal, if the description as a whole is sufficient to clearly describe the premises. Pray v. Wasdell, 146 Mass. 324; 16 N. E. Rep. 266 (1889).

There can be no recovery of any premises not described in the complaint. Lanne v. Buse, 70 Mo. 463.

In a complaint for forcible entry and detainer it is not necessary to allege that the notice to quit was in writing, although on the trial it must be proved to be so; and an allegation that "plaintiff served notice on the defendant, describing said premises to defendant," is sufficient. Hitchcock v. McKinster, 21 Neb. 148; 31 N. W. Rep. 507 (1887).

An allegation in a complaint in an action of unlawful detainer that defendant "has heretofore been a tenant at will of said real property, and that said complainant is entitled to the actual possession of the same," is insufficient to show the relation of landlord and tenant between the parties, under Rev. St. Tex., Art. 2445, requiring the complaint "to state the facts which entitle the complainant to the possession, and authorize the action." Gulledge v. White, 73 Tex. 498; 11 S. W. Rep. 527 (1889).

An affidavit under which a justice of the peace assumed jurisdiction of landlord and tenant proceedings, alleged that T. was in possession of premises owned by deponent, under an agreement between A., the former owner, and said T., and that the possession was continued to a certain time by consent of deponent and still continues, but without his permission. Held, that the affidavit failed to show the relation of landlord and tenant between deponent and T., and was insufficient to confer jurisdiction. State v. Staiger, 52 N. J. L. 350; 19 Atl. Rep. 387 (1890).

Where an action for forcible entry is brought in an adjoining precinct to that in which the premises are situated, and in which there is no justice of the peace qualified to act, as allowed by Comp. Laws N. M. 1884, § 2425, the complaint must allege that there is no such justice in the precinct where the premises are situated. Sanchez v. Candelaria (N. M.), 23 Pac. Rep. 239 (1890).

The landlord and tenant act (Rev. St. D. C., S$ 680, 681, 684, 686, 688), which provides that all tenancies at sufferance may be determined by thirty days' written notice to quit, and which does not require the relation of landlord and tenant to be set forth in the complaint, is satisfied, at least so far as to support the jurisdiction of the justice, by allegations that complainant is entitled to the possession of the premises, that they are detained from him and held without right by defendant, that defendant is his tenant at sufferance, and that his tenancy has been terminated by due notice to quit. Harris v. Barber, 129 U. S. 366; 9 S. Ct. Rep. 314 (1889).

A complaint alleging the date of the forcible entry as February 15th, without naming the year, though the complaint itself be dated February 19, 1886, is defective; but where the objection is not made until after defendant has appeared, and consented to a trial on the merits, and not until after the jury are sworn, it will be regarded as waived. O'Hagan v. Crossman, 50 N. J. L. 516; 14 Atl. Rep. 752.

12. The Question of Possession.-It is not an easy question to decide what particular acts constitute an actual possession of land as against a stranger or trespasser, but it may be stated as a general rule that it is sufficient if the premises are appropriated to the individual use in such a manner as to apprise the community or neighborhood that the land is in the exclusive use and enjoyment of another.' The question of possession will be found discussed in the chapters entitled "Possession" and "Adverse Possession."


To maintain the action, it is not necessary that the plaintiff should have a pedis possessio (a foothold, an actual possession); it is sufficient if the premises are used and occupied for some useful purpose; but if such possession is joint, as to different persons, neither one will be entitled to the joint possession. Jamison v. Graham, 57 Ill. 94.

Building a few rods of fence, cutting some brush, or plowing a few furrows, will not constitute such possession as to enable plaintiff to maintain forcible entry and detainer against a tenant who has been in possession for more than one year under a written lease from one who claimed adversely to plaintiff. Gallagher v. Connell, 23 Neb. 391; 36 N. W. Rep. 566 (1888). Civil Code Ky., § 452, defines a forcible entry as an entry without the consent of the person having actual possession, and, as to a landlord, an entry upon the possession of his tenant at will or by sufferance, whether with or without the tenant's consent. Held, that actual possession is necessary to maintain the action, and neither title, right of possession, nor constructive possession, is sufficient. Dills v. Justice (Ky.), 9 S. W. Rep. 299; Am. Dig. 1888, p. 563.

The constructive possession of one who has been disseized by an adverse entry is not sufficient to support the action. Gulledge v. White, 73 Tex. 498; 11 S. W. Rep. 527 (1889).

In unlawful detainer, where it appears that plaintiff was in possession when the action was brought, judgment should be for defendant. Hurst v. Dulany, 84 Va. 701; 5 S. E. Rep. 802 (1888).

Evidence that defendant had held uninterrupted possession of the premises for several months; that plaintiff then took possession by force, during defendant's absence, and sought to maintain it by force; and that defendant brought ejectment, but before the action was determined regained peaceable possession and has ever since retained it, is admissible to show the character of the possession relied upon by plaintiff to maintain the action. Murry v. Burris, 6 Dak. 170; 42 N. W. Rep. 25 (1889).

1 Pearson v. Herr, 53 Ill. 144 (1870).



Actual possession may exist by proof of something short of an actual residence on the land or inclosing by a fence, as in case of a wood lot, uninclosed, but used as an adjunct to a farm from which the latter is supplied with timber, wood and rails. Pearson v. Herr, 53 Ill. 144.

Possession under claim of title is sufficient to sustain an action of forcible entry and detainer against one entering without any title. Fore v. Campbell, 82 Va. 808; 1 S. E. Rep. 180 (1887).

Code Civil Proc. Cal., § 1160, subd. 2, provides that every person shall be guilty of forcible detainer who unlawfully enters on real property during the absence of an occupant who, within five days preceding such unlawful entry, was in peaceable and undisturbed possession of the land. Held, that plaintiffs need pot prove their actual, personal presence on the land for five days continuously preceding the unlawful entry. Giddings v. 76 Land & Water Co., 83 Cal. 96; 23 Pac. Rep. 196 (1890).

Evidence that plaintiffs have been in the exclusive possession of the land in dispute for three years, no one interfering with them except once, when defendants came and got some hay, and that defendants entered and took possession during the temporary absence of plaintiffs, without their consent and against their will, and have ever since retained possession, is sufficient to support a finding that plaintiffs were in the peaceable, actual, and undisturbed possession, and that defendants unlawfully entered. Giddings v. 76 Land & Water Co., 83 Cal. 96; 23 Pac. Rep. 196 (1890). Where the land is used in the same manner that owners of land of like character in the neighborhood commonly use theirs, the fact that it is not inclosed is immaterial. Giddings v. 76 Land & Water Co., 83 Cal. 96; 23 Pac. Rep. 196 (1890).

§ 13. Possession in the Defendant.--The forcible entry or the wrongful detaining of the possession of real property from the true owner is the gist of the action of forcible entry and detainer. Possession in the defendant at the time of bringing the action is therefore one of the essential elements of the plaintiff's case and the burden is upon him to show such possession unless the same is admitted by the pleadings.' In general the acts which establish the fact of the forcible entry or detainer are, of themselves, sufficient evidence of the possession in the defendant."

14. The Title May Be Indirectly Involved. The general rule of law is that the title is not involved in these summary proceedings to recover the possession of real property. Such proceedings are usually had in justices' courts and other courts of inferior jurisdiction to which it has never been the policy of the law to submit for adjudication the settlement of titles.

'Bell v. Cowan, 34 Mo. 251.

2 Porter v. Bleiler, 17 Barb. (N. Y.) 149; Leitch v. Boyington, 84 Ill. 179;

Thompson v. Amey. 12 Ad. & E. 476;
Doe v. Grant, 12 East, 221.

to real estate. Titles are sometimes, however, indirectly involved in these proceedings, and the deeds and title papers of the plaintiff are admissible in evidence for the purpose of establishing the extent of his possession, the boundaries of the land claimed, or the intention with which the party entered.'

In the California statutory action of unlawful detainer, evidence of title is inadmissible, though it is offered as having some weight on the question of the existence of a lease. 21 Pac. Rep. 533, affirmed. Felton v. Millard, 81 Cal. 540; 22 Pac. Rep. 750 (1890).

$15. Parties Plaintiff. As a general rule the person who has been deprived of his possession and who has a present legal right to the possession is the proper person to commence the action as plaintiff, and it is immaterial in whatever character or capacity his possession has been held or right of possession exists."

§ 16. When the Owner Parts with the Reversion. The right to bring the action is unquestionably in the person entitled to the possession, because he is the person injured. As against a tenant the person injured must be either the landlord or his legal representative, by assignment or otherwise. If the landlord has alienated the reversion during the term, then his alienee is entitled to the possession at its termination, and is the injured party by the holding over, and he should bring the action."

§ 17. Principal and Agent as Plaintiffs.-The possession of an agent is in law the possession of his principal. But he may, nevertheless, acquire such a possession of the premises

Pearson v. Herr, 53 Ill. 144 (1870); Turney v. Chamberlain, 15 Ill. 273; Dill v. Hubbard, 21 Ill. 328; Conway v. Gore, 27 Kan. 122; Dennis v. Wood, 48 Calif. 361; Anderson v. Mills, 40 Ark. 192; Camley v. Stanfield, 10 Tex. 546; 60 Am. Dec. 219; Winterfield v. Stauss, 24 Wis. 394; silvy v. Summer, 61 Mo. 253; Turnley v. Hanna, 82 Ala. 139; Settle v. Settle, 10 Humph. (Tenn.) 504; Clymer v. Powell, 56 Miss. 672; Emerick v. Tavener, 9 Gratt. (Va.) 220; 58 Am. Dec. 217.

2 Walker v. Thayer, 113 Mass. 36; People v. Fulton, 11 N. Y. 94; Baker v. Cooper, 57 Me. 388; Martin v.

Patchin, 4 Mo. App. 567; Hoffman v. Harrington, 22 Mich. 52; Rice v. Brown, 77 Ill. 549; Coonradt v. Campbell, 29 Kan. 391; Chiles v. Stephens, 1 A. K. Marsh. (Ky.) 334; Barton v. Learned, 26 Vt. 192; Womac V. Powers, 50 Ala. 55; Liss v. Wilcoxen, 2 Colo. 85; Laird v. Winters, 27 Tex. 440.

3 Lewis v. Smith, 2 Litt. (Ky.) 294; Yoder's Heirs v. Easley, 2 Dana (Ky.), 245; Dudley v. Lee, 39 Ill. 339 (1866); Ball v. Chadwick, 46 Ill. 28 (1867); Mueller v. Newell, 29 Ill. App. 192 (1888).

« PředchozíPokračovat »