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committed forcible entry and

even

who ouster, though the latter was the owner of the property, and entitled to immediate possession, if the plaintiff had at the time of the forcible ouster the actual peaceable possession thereof. And an action for the forcible detention of real property may be maintained by one whose complete possession thereof has been ended by the wrongful entry of another, even though such entry was made under claim of a paramount title. The general purpose of the statute does not regard the actual condition of the title to the property, but, where any person is in the peaceable and quiet possession of it, he shall not be turned out by force, by violence, or by terror. The party so using force and acquiring possession may have a superior title, or may have the better right to present possession; but the policy of the law is to prevent disturbances of the public peace, and forbid any person righting himself by his own hands and by violence, and requiring that the party who has obtained possession in this manner shall restore it to the party from whom it has been so obtained. The party out of possession must resort to legal means to obtain possession if he be entitled thereto. A party out of possession, though he may be entitled to the possession, must resort to the law alone to obtain what he claims.”

Sec. 363. Sufficiency of complaint. In an action of forcible entry and detainer or of forcible detainer, it is not necessary for the complaint to contain a statement of the particular facts relied upon to constitute the alleged forcible entry or forcible detention, but the complaint is sufficient in this regard if it contains the language of the statute. Okla. Code Civ. Proc., ch. 70, art. 9, § 4, applied. Richardson v. Penny, 6 Okla. 328 (50 Pac. Rep. 231). Overruling on this point Rice v. West, Okla. (33 Pac. Rep. 706). Citing, Barto v. Abbe, 16 Ohio 408; Brown v. Burdick, 25 O. St. 260; McAlpin v. Purse, 86 Ga. 271 (12 S. E. Rep. 412). Objection that the plaintiff has no sufficient complaint on file is waived when not made before going to trial. Lieferman v. Osten, 167 Ill. 93 (47 N. E. Rep. 203; 39 L. R. A. 156).

Sec. 364. Defenses to the action. The pendency of a prior injunction suit between the same parties and concern

ing possession of the same real property, cannot be pleaded by one of the parties as a defense to an action of forcible entry and detainer. Richardson v. Penny, 6 Okla. 328 (50 Pac. Rep. 231). A defendant in an action of forcible entry and unlawful detainer cannot defend on the ground that his entry and detention is in the capacity of agent and not in his own right. Luling v. Shepherd, 112 Ala. 588 (21 So. Rep. 352). Citing, Greenberg v. Lumber Co., 90 Wis. 225 (63 N. W. Rep. 93; 28 L. R. A. 439; 48 Am. St. Rep. 911); Mayer v. Building Co., 104 Ala. 611 (16 So. Rep. 620; 53 Am. St. Rep. 88; 28 L. R. A. 433); Perminter v. Kelly, 18 Ala. 716. It is no defense to an action brought by a landlord to have restitution of the premises for nonpayment of rent, under the forcible entry and detainer act of Minnesota (Gen. Stat. 1894, § 6118), for the tenant to show that the landlord has violated a covenant in his lease to keep the premises in good repair, on account of which damages have resulted to the tenant. Peterson v. Kreuger, 67 Minn. 449 (70 N. W. Rep. 567). Citing, Van Every v. Ogg, 59 Cal. 563; Phillips v. Port Townsend Lodge, 8 Wash. 529 (36 Pac. Pep. 476) and cases cited; Borden v. Sackett, 113 Mass. 214; Finney v. Cist, 34 Mo. 303 (84 Am. Dec. 82). A mortgagor having an equitable right to redeem from a sale of his property made in pursuance of a power of sale contained in his mortgage, cannot assert such cause of action as an equitable defense to an action of forcible entry and detainer, brought against him by the purchaser, in the municipal court of Duluth, Minn., for restitution after the year to redeem expires, though the statute authorizes that court to try such an action where the title to real estate is involved; and the judgment in that action is not a bar to the equitable action. Lundberg v. Davidson, 68 Minn. 328 (71 N., W. Rep. 395). Mansf. Ark. Dig., §§ 4170, 4174, construed and applied — when the action may be maintained for the nonpayment of rent-defeat of action by tender of amount due. Wilcoxen v. Hybarger, Ind.

Ter. (38 S. W. Rep. 669). Iowa Code, § 3621, construed and applied" thirty days peaceable and uninterrupted possession, with the knowledge of the plaintiff, after the cause of action accrued," is a bar to the action. Heiple v. Reinhart, 100 Ia. 525 (69 N. W. Rep. 871).

Sec. 365. Practice-Statutes construed. The action should not be abated because some of the plaintiffs are infants suing in their own names, where the recovery by other adult plaintiffs might enure to the benefit of all.

Lancaster v. Lancaster, Ky. (41 S. W. Rep. 34). Under the statute of Oklahoma, where it is shown that the plaintiff was in the peaceable and quiet possession of the premises and was dispossessed thereof by force by the defendant, the plaintiff is entitled to recover as damages, double the rental value of the premises for the period the possession was withheld from him. Chisholm v. Weise, 5 Okla. 217 (47 Pac. Rep. 1086). See, City of Oklahoma City v. Hill, 6 Okla. 114 (50 Pac. Rep. 242). Upon the trial of an action for unlawful entry, under Ga. Code, § 4072, title to the premises in dispute is not involved, except in so far as it bears upon the question of possession and the bona fides of the entry; and where one is in possession of a portion of a tract of land under a deed, claiming it in good faith, which, though not good as title, is nevertheless good as color, the entry of another upon the same premises in bad faith, without the consent of the person so in possession, is unlawful, and he may be evicted as an intruder, even though he may have entered under a pretended claim of title. If the claim of title be vicious, because it is made in bad faith, this leaves him still an intruder, and subject to eviction as such. Thorpe v. Atwood, 100 Ga. 597 (28 S. E. Rep. 287). Title cannot be tried in an action brought under Ill. Rev. Stat., ch. 57, § 2. Palmer v. Frank, 169 Ill. 90 (48 N. E. Rep. 426); Muller v. Balke, 167 Ill. 150 (47 N. E. Rep. 355.) Construing Nev. Gen. Stat., § 4697, providing that "offenses recognized by the common law and not herein enumerated shall be punished," it is held that forcible entry may be punished as a misdemeanor as it was recognized as such by the common law. Ex parte Webb, Nev. (51 Pac. Rep. 1027). Citing, 2 Bish. New Cr. Law, § 492; Harding's Case, 1 Greenl. 22; 4 Bl. Comm. 148; Cruiser v. State, 18 N. J. L. 206. S. Dak. Comp. Laws, §§ C072-6077, construed and applied-jurisdiction-sufficiency of complaint. Browne v. Haseltine, 9 S. Dak. 524 (70 N. W. Rep. 648). Utah Comp. Laws 1888, §§ 3787, 3801, construed and applied -when the action may be maintained-recovery of treble

damages. Eccles v. Union Pac. Coal Co.,15 Utah 14 (48 Pac. Rep. 148). W. Va. Code. 1891, ch. 50, § 212, appliedsufficiency of summons- allegation as to" unlawful withholding "-description of premises. Simpkins v. White, 43 W. Va. 125 (27 S. E. Rep. 361). The liability of sureties upon a bond given by a defendant in order to retain possession after the issuance of a provisional writ of restitution,under Wash. Laws 1891, p. 183, is not affected by the subsequent giving of an appeal bond, or by subsequent amendments in the complaint which do not change the cause of action, nor by the giving of an additional bond by the defendants for the same purpose. Lowman v. West, 18 Wash. 233 (51 Pac. Rep. 373). Mass. Pub. Stat., ch. 175, § 1— when the action will lie-amended, Laws 1899, p. 58.

FRAUDULENT CONVEYANCES.

EPITOME OF CASES.

Sec. 366. Conveyance for support of grantor. Where the recited consideration in a conveyance was that the grantee had cared for the grantor "for twenty years or more in time of sickness and distress," and would, as the grantor believed, "continue to look after" his wants during the balance of his life, it will not be set aside at the instance of one who subsequently asserts a claim for damage against the grantor for breach of an alleged marriage contract of which claim the grantor had no knowledge until after the execution of the conveyance. Gregory v. Lamb, Ky. (42 S. W. Rep. 339). Where the consideration for a conveyance is an agreement for future support of the grantor, the transaction is fraudulent in law as to his creditors, to the extent which the value of the property is in excess of the support actually furnished by the grantee in good faith. Harris v. Brink, 100 Ia. 366 (69 N. W. Rep. 684; 62 Am. St. Rep. 578). The court say: "The authorities proceed upon the theory that it is the legal duty of a debtor to pay his debts

rather than to provide for his future support, and that existing creditors may avail themselves of property conveyed for future support for the payment of their claims, when the debtor has no other property out of which payment can be enforced. Walker v. Cady, 106 Mich. 21 (63 N. W. Rep. 1005); Kelsey v. Kelley, 63 Vt. 41 (22 Atl. Rep. 597; 13 L. R. A. 640); Farlin v. Sook, 30 Kan. 401 (1 Pac. Rep. 123; 46 Am. Rep. 100); Henry v. Hinman, 25 Minn. 199; Faber v. Matz, 86 Wis. 370 (57 N. W. Rep. 39). And where the parties have acted in good faith, the conveyance may be sustained so far as the consideration paid by the grantee without notice is involved, but will be set aside as to any value in the property in excess of the amount paid; and in such case the grantee is chargeable with the value of the use of the property. Loos v. Wilkinson, 110 N. Y. 195 (18 N. E. Rep. 99); Gould v. Hurto, 61 Ia. 45 (15 N. W. Rep. 588); Redhead v. Pratt, 72 Ia. 99 (33 N. W. Rep. 382); Gaar Scott & Co. v. Hart, 77 Ia. 597 (42 N. W. Rep. 451).”

Sec. 367. Conveyances in fraud of marital rights. A husband's conveyance cannot be assailed by the wife on the ground that it will defeat the collection of her contingent claim for alimony in a threatened divorce suit which she has not begun and which she does not allege she has any ground for beginning. Ullrich v. Ullrich, 68 Conn. 580 (37 Atl. Rep. 893). A deserted wife, entitled to sue her husband for maintenance of herself and child, under Cal. Civ. Code, § 137, is his creditor within the meaning of § 3439, and may maintain an action to set aside a deed made by him for the purpose of defrauding her of her right for maintenance. She has this right although the conveyance was executed by her husband prior to the marriage, it appearing that at the time of the transfer they were cohabiting under an agreement of marriage and she was with child by him and therefore in no position to exercise a fair option whether she would fulfill her engagement with him or not. Murray v. Murray, 115 Cal. 265 (47 Pac. Rep. 37; 56 Am. St. Rep. 97; 37 L. R. A. 626). Citing, Green v. Adams, 59 Vt. 602 (10 Atl. Rep. 742; 59 Am. Rep. 761); Tyler v. Tyler, 126 Ill. 525, 537 (21 N. E. Rep. 616; 9 Am. St. Rep. 642); Stuart v. Stuart, 123 Mass. 370. If a

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