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PURCHASER UNDER SALE.

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as will in law enable him to maintain an action of forcible. entry and detainer for the recovery of the possession in his own name. The question being one of possession and not of title, for example, where a personal representative has been in the actual possession of premises, he may bring the action either in his representative or individual character.'

A person who is in possession of premises under an agreement to keep possession of them for the owner, has such an interest as will enable him to maintain an action of forcible entry and detainer. House v. Camp, 32 Ala. 541.

An agent shown to have acted as such for many years in renting and managing the land for the owner, his mother, can recover its possession from trespassers in a summary action brought under 18 St. S. C., p. 556, providing an "expeditious mode of ejecting trespassers," against persons who took possession of the land after plaintiff's tenant moved out. Bradley v. Bell (S. C.), 12 S. E. Rep. 1071; Am. Dig. 1891, p. 1895.

$18. A Purchaser Under a Sale, Mortgage or Deed of Trust. --In many States there are statutes providing that when real property has been sold under a power of sale contained in mortgages and trust deeds, and the time for redemption, if any is allowed by law, has expired, the purchaser, after a demand in writing, may recover the possession of the premises in an action of forcible entry and detainer. In these cases the burden of proof is upon the person bringing the action to show the mortgage or deed of trust, and the deed by the mortgagee or trustee under the power of sale to himself. In an action at law a deed made by the proper person under a power of sale in a mortgage or trust deed is conclusive evidence of the sale under his power and it can not be contradicted in a court having no equity jurisdiction or proved to have been executed in violation of law."

Where land was sold under execution issued upon a judgment against A, and B, his wife, and C, after A had placed the title fraudulently in his wife, and D afterward recovered a judgment against A alone, and under execution thereon redeemed from the prior sale and became the purchaser, and procured a decree finding the title to the land was in A and not B, it was held that D, after taking a sheriff's deed, might maintain forcible detainer for the land against any one succeeding to the possession under A

'Spear v. Lomax, 42 Ala. 576; 8 (Bump's Ed.), 332; Story's Eq. Jur., Am. & Eng. Ency., 133. Sec. 437; Taylor v. King, 6 Munf. (Va.) Windett v. Hurlbut, 115 Ill. 403 358; 8 Am. Dec. 748, note; Windett (1885). v. Hurlbut, 115 Ill. 403 (1885).

& Kerr on Fraud and Mistake

and B, or either of them, after the first sale. Kratz v. Buck, 111 TII. 43 (1884).

Where the beneficiary in a deed of trust purchases the property at saie on foreclosure, and enters into possession by tenant, and pays taxes on the land, he may maintain an action for unlawful entry and detainer in Mississippi against the mortgagor, who subsequently demands and receives possession from the tenant. Parker v. Eason (Miss.), 8 So. Rep. 844; Am. Dig. 1891, page 1895.

The remedy of forcible detainer given by statute in favor of a purchaser at a judicial sale after the time of redemption has expired, is not restricted to the nominal party against whom the judgment is obtained, but may be employed against any one who, either before or after the time of redemption has expired, obtains possession from the defendant in the judgment or decree. Kratz v. Buck, 111 Ill. 41 (1884).

In an action of forcible entry and detainer, brought under the sixth clause of Sec. 2, Chap. 57, of the Revised Statutes of Ill., 1874, giving that remedy in favor of a purchaser under a deed of trust, the plaintiff gave in evidence, on the trial, the deed of trust and the deed by the trustee to himself. The defendant offered parol evidence to prove that the trustee, in fact, made no sale, that the plaintiff paid nothing for the property, and that it was worth $30,000, and constituted defendant's homestead, which the court refused to hear: Held, that the ruling was clearly right. Windett v. Hurlbut, 115 Ill. 403 (1885).

§ 19. A Purchaser at a Judicial Sale.-Under a statute providing that when lands or tenements have been sold under the judgment of a court of competent jurisdiction, and the time for redemption, when redemption is allowed by law, has expired, the possession of the premises sold may be recovered in an action of forcible entry and detainer, the purchaser at the sale may maintain the action after a demand in writing and a refusal to surrender the same. And whether he brings the action against the judgment debtor or one succeeding to his rights and possession, the burden of proof is upon the plaintiff to show a valid judgment, execution and sheriff's deed.'

In an action for forcible entry, the records of proceedings under which defendant secured title to the land on which the entry was committed are admissible, for the purpose of showing the extent of possession. Dills v. Justice (Ky.), 9 S. W. Rep. 290; Am. Dig. 1888, p. 563.

While it is true that the question of title can not arise on the trial of an action of forcible detainer, nevertheless a purchaser at a judicial sale of land can not recover against the judgment debtor, or one succeeding to his

1 Kratz v. Buck, 111 Ill. 45; Womac 33 Ark. 682; Barto v. Abbe, 16 Ohio, v. Powers, 50 Ala. 55; Woodside v. 408; Lehman v. Whittington, 8 Ill Ridgeway, 126 Mass. 292; Liss v. Wil- App. 374. coxen, 2 Col. 85; Necklace v. West,

TENANT AS PLAINTIFF.

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rights and possession, unless he offers in evidence a valid judgment, execution and sheriff's deed. These are indispensable requisites to a recovery, for the reason that a sale of the land under a judgment, and a failure to redeem, must be shown. In such case the judgment, execution and sheriff's deed are evidence that the land has been sold and that there has been no redemption. Kratz v. Buck, 111 Ill. 45.

The purchaser of land at a sheriff's sale can not recover the possession from one in possession under a mortgage, executed by the judgment debtor, prior to the judgment under which his title is obtained, even though the mortgagee entered after the sheriff's sale under an arrangement with the mortgagor to allow rents by way of credits on the mortgage debts. son v. Dawson, 85 Ill. 53.

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20. The Vendee of Lands as Plaintiff.-Under statutes providing a summary remedy in favor of the grantee for the recovery of the possession of lands or tenements conveyed to him by a grantor in possession, the grantee may maintain the action of forcible entry and detainer against the grantor, and and this is true where the grantor was possessed of only an undivided half, but his deed purported to convey the whole estate.'

A grantee may maintain forcible entry and detainer against his grantor, the latter not defending under any other title and his deed purporting to convey the whole estate. Jewett v. Mitchell, 72 Me. 28.

§ 21. A Tenant as Plaintiff.-In order to recover in an action of forcible entry and detainer, it is incumbent upon the plaintiff to show that he was in the actual possession of the premises at the time of the alleged forcible entry.' If at the time of the alleged forcible entry the premises were in the actual possession of a tenant, then the tenant and not the landlord is the proper person to bring the action.'

22. Tenants in Common as Plaintiffs.-The action of forcible entry and detainer may be maintained by joint tenants and tenants in common, or by one or more of them, as the case may require, and one tenant in common may sue in this

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form of action without joining his co-tenant.' But it seems that a joint warrant of forcible entry in favor of three tenants in common can not be maintained when two only have the title."

$23. Heirs at Law as Plaintiffs.-When the landlord dies during the term for which he has demised lands or tenements, his heirs at law become eo instanti landlords of the tenant, and have such a right to the possession as will enable them to maintain any action for the recovery of the possession which their ancestor could have maintained had he been living. And the fact that the personal representative of the ancestor might intervene for the purpose of subjecting the land or its issues to the decedent's debts, will not affect the right of the heirs to maintain the action, especially where he has taken no steps to do so."

When a person in possession of land by his tenant dies pending the term, his heirs at law become eo instanti landlords of such tenant, and, as such, have such a possession of the land as will entitle them to maintain an action of unlawful detainer against one who wrongfully takes possession of it. Kellum v. Balkum (Ala.), 9 So. Rep. 463; Am. Dig. 1891, p. 1896.

$24. Evidence on the Part of the Plaintiff. It is incumbent on the plaintiff to prove that his possession has been invaded, that the premises of which he was in possession have been forcibly entered, or that the possession of the same has been wrongfully detained from him, the description of the premises in question' and the date of the forcible entry or detainer, and that the defendant was still detaining the premises at the time of the commencement of the suit."

When the action is brought by a landlord against a tenant, the burden is upon the plaintiff to show the determination of the tenancy either by expiration of the term or by the service

1 Jones V. Phillips, 10 Heisk. (Tenn.) 562; Turner v. Lumbrick, 1 Meigs (Tenn.), 7.

abatement in an action of forcible detainer is found by the court, on the trial of an appeal from a justice

Thomas v. Jones, 2 A. K. Marsh. of the peace, in favor of the plaintiff, it is error to render judgment against

(Ky.) 356.

Kellum v. Balkum (Ala.), 9 So. the defendant on the merits, without Rep. 463 (1891).

4 Stiles v. Hamer, 21 Conn. 507; Davis v. Ingersoll, 3 Doug. (Mich.) 372: Latimer v. Woodward, 2 Doug. (Mich.) 368; Reed v. Rawson, 2 Litt. (Ky.) 189. Where the issue on a plea in

evidence showing his right to recover. Steele v. Grand Trunk Junction Ry. Co., 125 Ill. 385.

5 Cummins v. Scott, 20 Calif. 83. Hoffman v. Harrington, 25 Mich.

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146.

PARTIES DEFENDANT.

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of a notice to quit or demand for possession or in some other legal manner,' as well as the tenant's refusal or neglect to surrender the possession and his holding over. The relation of landlord and tenant must also be established as an essential element of the plaintiff's case.'

When the action is in a court of inferior jurisdiction the plaintiff must show the facts necessary to give the court jurisdiction, for nothing is presumed in favor of the jurisdiction of these courts.*

§ 25. Parties Defendant.-As a general rule of law the person who is in the actual possession of the premises in question is the proper party to be made defendant. This person is in general the disseizor, but the action may be maintained against his representatives as well as against all persons in possession under him."

§ 26. Persons Holding Jointly. The action may be maintained against all persons who jointly make a forcible entry and detainer, but it can not be maintained jointly against persons who enter and hold in severalty, for the reason that courts of law will not take cognizance of separate causes of action against different parties in the same suit."

A wife is properly joined with her husband as defendant in an action for forcible entry and detainer, where it appears that they entered on the premises together, and together withhold possession from plaintiff. Porter v. Murray (Cal.), 12 Pac. Rep. 425 (1887).

Under Rev. St. Ill. C. 57, § 15, which provides that, whenever possession shall be divided among persons with or other than the lessee, all such persons may be joined as defendants in an action by the lessor for forcible entry and detainer, and the recovery against them shall be several, according to their actual holdings, a lessee who has delivered possession of the entire premises to his sub-lessees may be joined as a defendant with them, and judgment entered against them jointly for possession of the entire premises. Espen v. Hinchcliffe, 131 Ill. 468; 23 N. E. Rep. 592 (1890).

§ 27. Persons Holding Under a Tenant. The action of forcible entry and detainer lies in all cases where a tenant

'Sullivan v. Carey, 17 Calif. 80; 549; Kelly v. Teague, 63 Calif. 68; Hersey v. Westover, 11 Ill. App. 197. Orrick v. St. Louis, 32 Mo. 315; 2 Murphy v. Dwyer, 11 Ill. App. 246; Fogle v. Chaney, 12 B. Mon. (Ky.) Reed v. Grant, 4 Colo. 176. 138; Russell v. Desplaines, 25 Ala.

3 Snydecker v. Quick, 12 N. J. L. 414; Bird v. Fannon, 3 Head (Tenn). 129.

4 Liss v. Wilcoxen, 2 Colo. T. 85. Rooney v. Gillespie, 6 Allen (Mass.), 74; Rice v. Brown, 77 Ill.

12; 8 Am. & Eng. Ency., 138.

Reynolds v. Thomas, 17 Ill. 207 (1855); Gould v. Hendrickson, 9 Ill. App. 171.

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