Altree v. Moore ( 1861 )

Boise, J.

There are several questions arising under the pleadings, which tender somewhat to embarrass and confuse the case, which I do not think it necessary to consider. It is admitted in the pleadings that Moore was in possession of the mill at the time of the execution of the lease to Holland; for defendants claim in the answer that said lease was not forfeited by the entry of Altree under Holland, and that the same was still in force against Moore; and, as I understand the pleadings, defendants claim to have taken legal and peaceable possession of said mill under said Holland, who had his only possession under said lease, and the mill and dwelling-house, and other appurtenances, were together on the claim, and together constituted the donation land claim of Moore. I think that the pleadings plainly indicate that Altree took possession under Holland, and, by consequence, could receive or legally claim no higher or greater estate than Holland had to bestow, and is not now at liberty, after having got possession from Holland, to set up a title paramount in himself; for the possession which he had from Holland was a possession under a lease, by the terms of which Holland was bound, on the expiration of the term, to restore to Moore the possession. Now, suppose the jury found that Altree entered peaceably under Holland; that there was the collusion charged in the complaint, and that the lease became forfeited ; and, also, that defendants, having no rights under the forfeited lease, were wrongfully holding over by force; would their verdict support such conclusions ? The verdict is as follows : “ We, the jury, find the defendants guilty of the wrongful detainer, in manner and form, as the plaintiff in his complaint hath alleged.” The complaint alleges, “ that the said defendants unlawfully hold by force.” Eut the words, in manner and form, refer to .the allegation in the complaint of force, and I think the verdict is in proper form to be supported by the allegation referred to. In a case of forcible entry and detainer, a defendant cannot set up a title in himself, and rely on that as a defence; he can only deny, and offer evidence to rebut the plaintiff’s possession at the time of the alleged forcible entry; or, he may deny that he unlawfully holds, and offer evidence to rebut the plaintiff’s case. If he, defendant, have a title paramount, he must assert it in a different manner. (See Taylor's Landlord and Tenant, section 792.) There was objection made to the admission of the decision of the register and receiver, but I do not see how that could have influenced the finding of the jury ; for that decision was merely evidence of possession at the time of the lease to Holland, and that is admitted by the pleadings, and could not have affected the issue as to the unlawful holding by force; and I think, therefore, that it is not important in this case to consider this and other questions not necessary to this decision.

Judgment is affirmed.