Torrey v. Berke , 11 S.D. 155 ( 1898 )

Fuller, J.

As the answer in this forcible entry and detainer action before a justice of the peace put in issue the title to real property, the case was certified1 to the circuit court, where a trial resulted in a judgment for plaintiff, from which, and an order overruling his motion for a new trial, the defendant appeals.

The property in dispute consists of a lot 200 feet square, upon which a flouring mill is situated, to the actual possession of which respondent claims to be entitled by reason of a contract of purchase and sale which he and W. H. Wilson entered into with the Minnehaha National Bank on the 1st day of August. 1893. The evidence shows that respondent, though in default, continued to occupy the premises and operated the mill until some time in July, 1895, when the miller in charge during respondent’s temporary absence from the state voluntarily and in good faith turned over the keys and surrendered actual possession of the entire property to Porter P. Peck, president of the bank, who, on its behalf, had executed the contract above mentioned, and the following paper, dated December 17, 1894, which is signed by respondent and his co-obligor, W. H. Wilson: ‘.‘It is hereby agreed that W. H. Wilson and H. C. Torrey do hereby assign to the Minnehaha National Bank all their right, title, and interest in a certain contract entered into between the said W. H. Wilson and the said H. C. Torrey on the 1st day of August, A. D., 1893, with the said Minnehaha National Bank, for the purchase of certain property known as the ‘Montrose Roller Mill,’ and the said W. H. Wilson and the said H. C. Torrey waive all rights thereunder. And it is further agreed that the interest of ■ the said W. H. Wilson in the stock of the said mill and the flour and merchandise on hand is hereby assigned to the Minnehaha National Bank, and that out of the proceeds of his said share of said stock the said Minnehaha National Bank shall, when the same is. converted into money, credit the said sum of $300.00 upon a certain note for $355 made by the Said W. H. Wilson.to the said Minnehaha National Bank.” Thereafter,' and on the 10th day of August, 1895, while the bank held the legal title and was in actual possession of the premises, appellant in apparent gdod faith, and for a valuable consideration, entered into a written contract for the purchase of the property, by which the bank, upon’ the performance of certain enumerated things by the grantee, bound itself to execute and deliver to him a good and sufficient deed with the usuai covenants of warranty, and pursuant to this contract appellant, without any force, intimidation, fraud or stealth, entered peacefully upon the bank’s prior actual occupancy of the property, and now defends his possession upon the theory that in contemplation of law his entry was not forcible, nor his detention unlawful. As the remedy is in its nature summary, and the action, under subdivision 1 of section 6073 of the Compiled Laws, on,ly maintainable “where a-party has by force, intimidation, fraud or stealth entered upon the prior actual possession of real property of another and detains the same,” proof that the complainant was not in actual peaceable occupancy at the time of the alleged wrongful entry, or that possession was taken in good faith under color of right to the premises, is always a complete defense. Murray v. Burris, 6 Dak. 170, 42 N. W. 25; Dennis v. Wood, 48 Cal. 361. In California, under a similar statute, it has been uniformly held that “the remedy by the action of forcible entry and detainer is only given to those who are in actual possession (at the time of the ouster complained of), and cannot be sustained by merely showing a constructive possession or right of possession.’' Barlow v. Burns, 40 Cal. 351. Neither is a scrambling possession sufficient, nor can title be made a matter of inquiry beyond its bearing upon the question of motive, or to justify an alleged forcible entry and detainer. Conroy v. Duane, 45 Cal. 597; Conaway v. Gore, 27 Kan. 122; Pike v. Witt, 104 Mass. 595. Upon the undisputed evidence showing that respoudent was not, at the time of the alleged wrongful entry, in' actual possession, and that appellant, without fraud or collusion, went into peaceful possession under a contract c»f purchase with the actual occupant and party holding the record title, the motion made to direct a verdict'iu' favor of appellant ought to have been granted. Farmer v. Hunter, 45 Mich. 337, 7 N. W. 904; Worthington v. Woods, 22 Neb. 230, 34 N. W. 368; Brown v. Beatty, 76 Ala. 250; Moore v. Agee, 7 Mo. 146; Keller v. Klopfer, 3 Colo. 132; Owen v. Doty, 27 Cal. 502; Dawson v. Dawson, 17 Neb. 671, 24 N. W. 339. As against appellant, the subsequent efforts on the part of respondent to regain possession of the mill amounted to a mere trespass, and the state of facts disclosed by the record are not such as to justify an'action in forcible entry and detainer. In the absenc'e of every essential element of forcible entry and detainer, the purpose and legal effect of the instrument sjgned on the 17bh day of December, 1894,, by respondent and Wilson, and delivered to the bank, need not be determined. The judgment appealed from is reversed, and the case remanded for a new trial.