Gowan v. Bensel

Gilfillan, C. J.

Action in ejectment. The facts alleged in the complaint, so far as they affect defendant Bensel, are, concisely stated, that she and one Dunn were prior to January 18, 1891, owners of the real estate in controversy, and leased the same to defendant Gaskill, who entered into, remained, and at the commencement of the action was in, possession; that Bensel’s title, being to an undivided third, on said date passed to and is now in plaintiff by virtue of a sale on execution, and afterwards plaintiff gave Gaskill notice thereof, and demanded that he pay one-third of the rent to her, which he refused to do.

Whatever may be plaintiff’s remedy against Gaskill, she cannot maintain the action of ejectment against Bensel, for the reason, if there were no other, that the latter is neither actually nor constructively in possession. While the relation of landlord and tenant existed between her and G-asldll his possession was her possession, but, when that relation ceased by her title passing to plaintiff, she was no longer in possession through Gaskill as tenant. The general allegation that the possession is wrongfully and unlawfully detained by defendant is of no effect as against the specific facts showing where the possession is.

Order affirmed.

Vanderburgh, J., took no part in this decision.

(Opinion published 54 N. W. Rep. 934.)