Sanders v. Thornton , 2 Indian Terr. 92 ( 1899 )

TowNSEND, J..

The appellant (plaintiff below) has assigned nine specifications of error, and has filed a brief 'of his argument. The defendant has filed no brief in the case. The first error assigned is that the court erred in not setting aside the verdict because it was contrary to the law, and the second error assigned is in not setting it aside because it was contrary to the evidence. The third error assigned is that the court erred in refusing to give the following instruction: “If the jury believe from the evidence that the de fendant in this case is a citizen of the United States, then you will'find for the plaintiff, as the defendant had no right to purchase or hold improvements on the public domain of the Cherokee Nation. ” The fourth, fifth, sixth, seventh, and eighth errors assigned are the giving certain instructions to the jury by the court, and the ninth error is that the court erred in, not giving plaintiff a new trial.

An examination of the complaint and answer in this action shows that it is the statutory action of unlawful de-tainer, as provided in section 3348, Mansf. Dig., which is as follows: “Sec. 3348. When any person shall willfully and with force hold over any lands, tenements, or other possessions after the determination of the time for which they were demised or let to him, or shall lawfully and peaceably obtain possession, but shall hold the same unlawfully and by force, or shall fail or refuse to pay the rent therefor when due, and after demand made in writing for the delivery of possession thereof, by the person having the right to such possession, his agent or attorney, shall refuse to quit such possession, such person shall be deemed guilty of an unlawful detainer. ” This statute has been construed by the Supreme Court of Arkansas in a number of cases, and it is proper to see what that court has said about this statute, to ascertain if the case at bar comes within it. In Dortch vs Robinson, 31 Ark. 298, 299, the court say : “ Under the law as it stood in Gould’s Dig. c. 72, it was decided that an unlawful detainer would not lie on the right of possession merely, but the relation of landlord and tenant, express or implied, must exist between plaintiff and defendant to entitle the former to maintain this form of action against the latter. * * * Appellants attempted to maintain unlawfal detainer upon a mere alleged right of possession under the sheriff’s deed; in other words, to make this form of action answer the purpose and scope of ejectment. * * * In this case the complaint does not show that appellants were ever in possession of the lands,” etc. In Necklace vs West, 33 Ark. 687, the court say : “That the court below did not err in giving instructions, upon the facts disclosed in evidence,” as follows: Before the jury can find for the plaintiff, they must find from, the weight of the evidence that the defendant was put in possession of the premises in question under a contract, express or implied, to return possession at some future time, and that defendant'held the same over after the expiration of said time, after lawful demand, in writing, of defendant by plaintiff, for possession. If such be not proved, they will find for the defendant. If you find from the evidence that there was no contract between plaintiff and defendant, either expressed or implied, by which the relation of landlord and tenant can be established, then you will find for the defendant, and assess his'damages at such sum as you may believe, from the evidence, he is entitled to. ” In Johnson vs West, 41 Ark. 540, the court say : “Unlawful detainer is a remedy provided by statute for the benefit of landlords against tenants who hold over after the expiration of their terms. It is founded on the breach of a contract, implied by law, if not expressed, that the tenant shall restore a permissive possession to the hands from which it was received. ” It will be observed that, while defendant denies specifically every allegation of the complaint, and sets up in his amendment to his answer that defendant purchased the premises from one Posey Gibson for a consideration of $800, and had the title made to the plaintiff, ‘1 with the understanding with the said Posey Gibson and the plaintiff in this case that he was to hold such bill of sale of the said place as trustee for the defendant, or such person as he should designate a conveyance to be made to, and the said plaintiff accepted and agreed to carry out said trust,”the reply of the plaintiff simply denies the damage alleged by defendant, but does not deny the above allegation that he holds the title simply as trustee for defendant or sucb person as defendant should designate _ that the conveyance be made to. The theory of the plaintiff is embodied in the third specification of error, supra; in other words, that because the defendant is a citizen of the United States, and prohibited by statute from owning any land in thei-Indian Territory, therefore the plaintiff, whose only title is that of a naked trustee, can recover the property as his own. We think this very doubtful, even in the Indian Territory, with its stringent prohibitions against the settling upon lands by citizens of the United States; but, be that as it may, it is unquestionably impossible for the plaintiff to assert such a title in the statutory action of unlawfubdetainer. We think the instructions of the court to which plaintiff objects in his fourth, fifth, sixth, seventh, and eighth assignments of error were substantially correct. They are as follows: “(4) The burden of the proof is upon the plaintiff to prove by the preponderance of the evidence that the defendant entered said premises and held the possession thereof under the plaintiff as his tenant, and that the time for which he was to hold such premises had expired before the beginning of this action. (5) The jury are further instructed that if you believe, from the evidence in the case, that the alleged bill of sale from Gibson to Sanders was procured to be made by Thornton/and he (Thornton) had purchased for another person, who should be a Cherokee citizen, the improvements from Gibson for the purpose of having the premises held for such person, then Sanders was not the owner of such place, and the bill of sale would not authorize Sanders to recover the place in this action. (6) If the jury find from the evidence that before the execution of the alleged bill of sale from Gibson to Sanders, Gibson had sold the improvements to Thornton for the person to be named by Thornton, and had received part of the purchase money, and had placed Thornton in possession of the improvements, then it was an executed contract so far as Sanders was concerned, and the plaintiff cannot raise the question of the validity of such sale from Gibson to Thornton in this case. (7) If the jury find for the defendant in this case, you will assess his damages for the rental value of bhe premises during the time he has been kept out of possession thereof by the proceedings instituted against him by the plaintiff in this suit, and the time appears from the evidence. (8) The jury are instructed that, Thornton being the defendant, and having been in possession at the time this suit was instituted, the law recognizes possession as entitling a person to rights superior to any person who has no title and who was not in possession, and that the plaintiff cannot recover in this action unless he was entitled to the possession of the premises, and that depends upon the strength of his title as appears from the evidence in this case. He could not succeed in this suit unless he were entitled to possession, and that depends upon the evidence in this case.” We are of the opinion that this was not an unlawful detainer action, and that the judgment of the court in overruling the motion for a new trial was correct, and it is therefore affirmed.

Clayton, J., concurs.