Larson v. Baker

I respectfully dissent.

As stated in Division V of the majority opinion, Code section 10655 excepts from the jurisdiction of the municipal court actions "directly affecting the title to real estate."

Section 1 of Article XI of the Constitution of Iowa contains an analogous provision limiting the jurisdiction of a justice of the peace. Statutes of various states contain similar provisions. 21 C.J.S. 448, section 247; 31 Am. Jur. 734-736, sections 46-49; 14 Am. Jur. 407, section 208. In Krumweide v. Schroeder, 56 Iowa 160,9 N.W. 107, a judgment of removal by a justice of the peace in an action by a lessee against his lessor was held void for lack of jurisdiction.

The case at bar was brought under chapter 517 of the Code, entitled "Recovery of Real Property." Such actions are frequently called actions of right. "Any person having a valid subsisting interest in real property, and a right to the immediate possession thereof, may recover the same" by such action. Code section 12231. "The plaintiff must recover on the strength of his own title." Code section 12232. "The petition may state generally that the plaintiff is entitled to the possession of the premises * * * also the quantity of his estate and the extent of his interest therein, and that the defendant unlawfully keeps him out of possession * * *." Code section 12235. "The verdict may specify the extent and quantity of the plaintiff's estate and the premises to which he is entitled * * *." Code section 12245. A general verdict for plaintiff entitles him "to the quantity of interest or estate in the premises as set forth and described in the petition." Code section 12246.

Many other states have statutes regulating actions in the nature of ejectment. 28 C.J.S. 849, section 3. In 18 Am. Jur. 100, section 125, it is stated:

"The general effect of these statutory provisions is to render the action of ejectment one which affects the title of the property in dispute, as well as the right of possession."

Ewert v. Robinson, 8 Cir., Okla., 289 F. 740, 750-754, 35 A.L.R. 219, discusses various authorities which hold that in an action in ejectment by a tenant against his landlord the tenant's lease is his title. It quotes from Tyler on Ejectment, 169: "``Clearly, a tenant for life, or for years, has the exclusive right of possession of the land, and his title, therefore, enables him to maintain the action of ejectment * * *.'" And again, quoting from Marshall v. Shafter, 32 Cal. 176, 194: "``This right to the possession is title * * *.'" Other like statements are made or quoted with approval. The decision states that the lease amounted to a conveyance of an interest in the land and the lessee acquired such interest.

Tarpey v. Deseret Salt Co., 5 Utah 205, 214, 14 P. 338, 341, states:

"It [the lease] is not the title in fee, but it is of the same nature, yet a less estate — one of a lower grade. It is embraced within the fee, and is in subordination to it. The fee title includes the right to the possession. A party may convey a part of his right — his right to the possession."

Brown v. Armenta, 21 Ariz. 334, 336, 188 P. 260, 261, states:

"It is well settled that an action of ejectment lies to recover land held under a lease for a term of years. Where the holder of the lease attempts to recover possession by such action, he founds his recovery or right of possession upon an interest in the land arising from ownership of the lease upon the land."

The sentence last quoted also appears in Long v. Bagwell,38 Okla. 312, 314, 133 P. 50, 51, followed by the statement:

"Of such action courts of justices of the peace have no jurisdiction."

In an annotation in 115 A.L.R. 514, a number of authorities are cited in support of a statement by the author, "A justice of the peace has no jurisdiction of an action in ejectment."

Kirschler v. Albanesius, 13 N.J. Misc. 366, 368, 178 A. 568, 569, was an ejectment action, based upon a lease and brought by a lessee in the court of common pleas of that state. We quote therefrom:

"It is argued that ``the title to the real estate,' referred to in the exception to the jurisdiction of the pleas, supra, means solely full freehold title, and does not include a mere right or claim to possession for less than freehold, such as a leasehold or term for years."

The court overruled this contention and held that under a statute giving the court of common pleas jurisdiction at law in civil actions, save those wherein the title to real estate is in question, said court had no jurisdiction of such action.

Grosso v. City of Lead, 9 S.D. 165, 167, 68 N.W. 310, referring to a statute limiting the jurisdiction of a justice court, quotes a statement, from Ehle v. Quackenboss, 6 Hill (N.Y.) 537, 539, that the word "title" as used in the statutes means "``precisely what it means in reference to the common law action of ejectment. It is synonymous with the right of possession.'"

With the exception of Missouri, most authorities from other jurisdictions agree that judgments in ejectment in cases of this kind directly affect title. See, also, Sartwell v. Sowles, 72 Vt. 270,48 A. 11, 82 Am. St. Rep. 943; Davis v. Robinson, 374 Ill. 553,30 N.E.2d 52, 54.

It is true that municipal courts and justice courts have jurisdiction of actions of forcible entry and detainer. Herkimer v. Keeler, 109 Iowa 680, 685, 81 N.W. 178, 180, states:

"The action of forcible entry and detainer is a summary proceeding, and the question involved is the fact of possession alone, and not, necessarily, the right of possession. * * *

"It is expressly provided in Section 4216 [section 12274, Code of 1939] that the question of title cannot be investigated before a justice. The proceedings cannot be made a substitute for an action of right."

In State Exchange Bank v. Iblings, 190 Iowa 1045, 1049,181 N.W. 423, 425, this court considered a contention that a judgment of the justice court in forcible entry and detainer adjudicated the right of possession, and stated:

"The fallacy of this claim is in the line that ``the plaintiff was adjudicated to have the right of possession of the property in question.' The action of forcible entry and detainer is a summary proceeding, and the only question involved is the fact of possession. This action cannot be made a substitute for an action of right. Herkimer v. Keeler, 109 Iowa 680. The right ofpossession cannot be determined in an action of forcible entry and detainer. The question involved is the fact of possession, not the right. Cagwin v. Chicago N.W.R. Co., 114 Iowa 129; Delmonica Hotel Co. v. Smith, 112 Iowa 659; Denecke v. Miller,142 Iowa 486.

"In expressing this legal principle, the language used in the opinions in some of the prior decisions of this court is not happily chosen, and the distinction between possession and theright of possession is not made. See Chambers v. Irish, 132 Iowa 319. * * *

"The judgment entered in the instant case * * * determined the only issue involved: the fact of possession. It did not preclude the defendants from asserting their right of possession or theirright of property therein."

Our decisions point out that a judgment of a justice court or municipal court in forcible entry and detainer merely adjudicates the fact of possession and hence does not affect the title. A judgment in ejection adjudicates the right of possession, which in this case would be the lessee's title under his written lease. It is this "title" which Code section 12232 requires plaintiff to establish. Likewise, the language referring to the form of the verdict (sections 12245 and 12246), extent and quantity of plaintiff's estate and quantity of interest or estate, here means the lessee's interest (title) under his lease. The judgment upon a verdict which determines a lessee's interest in the land under his lease is an adjudication affecting the title.

In Krumweide v. Schroeder, 56 Iowa 160, 9 N.W. 107, we decided the proposition involved in this case. That decision points out that the statute makes no provision for an action in forcible entry and detainer by a lessee against his lessor and holds that a justice of the peace has no jurisdiction of an action brought by a lessee against his lessor to secure possession of the leased premises.

It may be observed that, although the majority opinion in this case does not expressly overrule or even refer to the Krumweide case, it does, in effect, overrule that decision.

Division V of the majority opinion is largely based upon the following statement:

"We held in Jensen v. Nolte, supra [233 Iowa 636,10 N.W.2d 47], under identical facts, that the right to possession and not the title was the subject matter of such an action."

What we held in that case was that the lessee could maintain the action — in district court. The question was whether a leasehold interest was a sufficient basis for such an action. The reason given for our holding was that a lease "is a conveyance by the owner of a portion of the owner's interest therein to the lessee. It creates in the lessee an interest in the real estate." [233 Iowa 639, 10 N.W.2d 49.] Such reason is contrary to the majority opinion in the case at bar and is in accord with the authorities referred to in this dissent.

The statement in the Jensen case which the majority tells us we "held" is:

"The issue as to the right to possession might rest on the question of title, but the subject matter of the action was not the title." [233 Iowa 638, 10 N.W.2d 48.]

The context shows said statement had reference to actions of ejectment in general and not to actions by a lessee against his lessor in particular, as the majority infers. If the foregoing statement supports the majority decision in this case it would likewise support a decision that no action in ejectment affects title.

I will not attempt to analyze the statement that the issue might rest on the question of title but the subject matter was not the title. In this case the issue does rest on the question of the lessee's title. As heretofore noted, the interest of the lessee in the land is his title. The judgment adjudicates the validity of such title.

The majority opinion again refers to Jensen v. Nolte and the statutory provision that plaintiff must recover on the strength of his own title. The majority opinion states that has no application here because "the right to possession is not based on assertions of title." No authority is cited to support this statement. It is contrary to the general rule recognized by the authorities hereinbefore cited that in a case of this character a leasehold interest is title and the written lease is documentary evidence of such title.

GARFIELD, J., joins in this dissent.