Garrett v. Edwards , 168 Ark. 243 ( 1925 )

Appellee brought an action of unlawful detainer to recover from appellants the possession of a lot in the town of Blackwell, which he alleged that he had rented them on November 10, 1922, for a monthly rental of $10, to be paid at the end of each month; that default was made in the payment of the rents, and a notice in writing to vacate was served on defendants. Judgment for rents and possession was prayed.

Defendants filed an answer admitting the tenancy, but alleging the fact to be that, shortly after they went into possession of the property, they were notified by _____ Maus and ______ Berkemeyer, trading and doing business as Maus Berkemeyer, that they were the owners of the property and were entitled to the rents; that thereafter defendants deposited the rents in a bank, awaiting a settlement of the question as to who was entitled to the rents. There was a prayer that Maus Berkemeyer be made parties defendant and required to litigate with plaintiff the question of ownership of the rents.

A demurrer was sustained to this answer, and, as defendants declined to plead further, judgment was pronounced on the pleadings in favor of the plaintiff.

The demurrer to the answer was properly sustained. In the case of Dunlap v. Moose, 98 Ark. 235, it was said: "The action of unlawful detainer is only to decide the right to the immediate possession of lands and tenements and not to determine the right or title of the parties to or in them. A tenant cannot dispute the title of his landlord while he remains in possession under him, nor acquire possession from the landlord by lease and then dispute his title, but must first surrender possession and bring his action." See also Burton v. German, 125 Ark. 141; Montgomery v. Massey, 145 Ark. 336; Morris v. Griffin,146 Ark. 439.

The judgment of the court below is therefore affirmed.