Allen v. Houn, 213 P. 757

Allen v. Houn

213 P. 757 | Wyo. | 1923

Blume, Justice.

Plaintiff R. E. Allen, appellee here, brought this action against defendant Jacob Houn, appellant here, in the District Court of Fremont County, alleging among other things “that the plaintiff is now and at all times mentioned was the *416owner of and had a legal estate in and to certain real property in Fremont County, Wyoming, more fully described as” the east one-half of north-west quarter of Lot 2, Section 30; and the northeast quarter of the southeast quarter of Section 30, Twp. 1 N. R. 4, “and that the plaintiff is entitled to the possession of the said above described premises, together with the possession of all of the houses, barns, corrals, and other improvements thereon, and that defendant unlawfully keeps the plaintiff out of possession of said premises.” Plaintiff further alleges that he, as lessor, entered into.a five year’s lease for said premises with defendant -as lessee, on February 25th, 1918, said lease containing certain covenants and conditions, which are set out, including the agreement that, should the lessee fail, neglect or refuse to keep or perform the covenants and conditions of the lease, it should be lawful for the lessor to immediately declare the contract forfeited and cancelled and to enter upon and take charge of the premises. It is further stated that said lessee failed and refused to comply with certain of the covenants and conditions of said lease, including failure to farm said premises in good workmanlike manner, failure to properly stack the hay, refusal to permit lessor to use part of the pasture, and refusal to occupy that part of the buildings designated and provided for in the lease; that said lessor accordingly has terminated said lease and that he gave written notice thereof to defendant. Plaintiff asks for restitution of the premises, together with damage and, generally, other equitable relief. The lower court found for the plaintiff, and entered judgment accordingly. From this judgment the defendant appeals.

1. The only error assigned is that the District Court had no jurisdiction, based on the contention that the action herein is one of forcible entry and detainer, of which only justices of the peace have original jurisdiction, and that an action between a landlord and tenant to recover possession of the premises leased cannot be brought as an original action in the District Court. Section 6236 of the Wyoming *417Compiled Statutes 1920 provides lor the requirements of a petition in eases commonly called or known as ejectment, of which the District Court has original jurisdiction, as follows :

“In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same * * * and that the defendant unlawfully keeps him out of the possession; and it shall not be necessary to state how the plaintiff’s estate or ownership is derived.”

Sections 6621 to 6635 of the statutes of 1920 provide for summary actions in forcible entry and detainer before justices of the peace. Section 6625 provides that in such a case plaintiff shall in his petition describe the property the possession of which is claimed and shall state the facts upon which he relies in order to recover the premises. Without deciding the point, it may be assumed that the plaintiff here might well have brought this action under the provisions of these sections. But we think it clear that he did not, but meant to and did bring an action in ejectment. This we think appears clearly from the fact that he brought his action directly in the District Court, and that his petition, of which we have quoted portions verbatim, comes within the requirements of Section 6236, supra, relating to such actions. As to whether or not, in cases like the present, the allegations provided for in the last mentioned section of the statute are the only essential allegations, or whether other facts, and what facts, should be pleaded in addition, we need not determine; the petition here, in addition to pleading the allegations necessary under Sec. 6236, supra, also sets out the facts of the case generally, and in the absence of any question raised in regard thereto, we should treat it sufficient to confer jurisdiction on the District Court, provided that such action, upon the facts, could properly be brought in that court, a question which we shall now proceed to consider.

*4182. The ordinary common law remedy by which a landlord may recover possession is the action o£ ejectment; and this is in fact the only civil remedy to which he can resort when the statute does not authorize a summary proceeding for the recovery of possession. (Taylor L. & T. (9th Ed.) See. 698.) The authorities are not entirely agreed as to whether a right of re-entry exists, and hence an action in ejectment lies, in the absence of a provision in the lease authorizing such re-entry (See Taylor, supra, Sec. 494; 24 Cyc. 1349, 1351; Brooks v. Gaffin, 192 Mo. 228, 90 S. W. 808; Same v. Same, 196 Mo. 351, 95 S. W. 418.) But the rule appears to be one of entire unanimity among the courts, that where, as in the case at bar, it is stipulated in the lease that the lessor shall have the right to re-enter the land upon conditions broken or covenants violated, then upon the happening of the breach stipulated for in the lease, an action in ejectment will lie in favor of such lessor to recover the possession of the premises leased. (9 R. C. L. 864; 19 C. J. 1033; 24 Cyc. 1399, 1400, 1406; Roach v. Hefferman, 65 Vt. 485, 27 Atl. 71; Bowyer v. Seymour, 13 W. Va. 12; Rooks v. Seaton, 1 Phila. 106; Jackson v. Brownson, 7 Johns. 227, 5 Am. Dec. 258; Palmieros v. Antinozzi, 47 Misc. 237, 95 N. Y. S. 865; Weinman v. Trainer, 186 N. Y. S. 587; Holding Co. v. Feldman, 269 Fed. 306; Shannon v. Long, 180 Ala. 128, 60 So. 273; Merrill v. Gordon, 15 Ariz. 521, 140 Pac. 496; Brooks v. McLinden, 6 Ind. Terr. 481, 98 S. W. 166.) It seems, however, to be claimed that, since the existence of the right of summary proceedings in forcible entry and detainer, and unlawful detainer, the remedy of an action in ejectment no longer applies in cases like the present. But the statute providing for these summary proceedings is not exclusive by its terms. Section 6621, Wyo. Comp. Stat. 1920 provides that any justice of the peace ‘shall have power” to try such actions. Section 6622 provides that “proceedings-under this chapter may be had” under the conditions enumerated. These provisions are, therefore, permissive, and in no manner compel a landlord *419to resort thereto in order to obtain the relief provided for therein, if the same relief may also be had in an action of ejectment at common law. Civil actions in forcible entry and detainer or unlawful detainer were not known to the common law; that remedy is purely statutory. (White v. Veitch, 27 Wyo. 401, 405, 197 Pac. 983, 26 C. J. 811.) And the rule is that where a statute providing a remedy does not create a new right, but merely gives a new remedy not known to the common law, the new remedy will ordinarily be considered as not exclusive but merely cumulative. (1 C. J. 990; 12 C. J. 194.) This general rule has at various times been specifically upheld in cases similar to the case at bar, and the law appears well settled that summary pro-' ceedings in forcible entry and detainer constitute simply an additional and cumulative remedy in cases brought by a landlord to recover possession from a tenant, and not to forbid the institution of an action in ejectment in any case where it might have been properly brought at common law. (26 C. J. 870; 19 C. J. 1033; Williams v. Potter, 2 Barbour 316; Van Raenselaer v. Snyder, 9 Barbour 302; Compton v. Chelsea, 139 N. Y. 538, 34 N. E. 1090; Rutter v. Maher, 147 Ill. App. 622; Alden v. Lee, 1 Yates (Pa.) 160; Edwards v. Collins, 198 Mo. App. 569, 199 S. W. 580; Deneke v. Miller, 142 Iowa 486, 119 N. W. 380, 19 Ann. Cas. 949; The Chicago Great Western Ry. Co. v. The Iowa Central Ry. Co., 142 Iowa 459, 119 N. W. 261; Abbott v. Coates, 62 Neb. 247, 86 N. W. 1058.)

In the last ease cited the court said:

“The contention is urged that plaintiff has mistaken his remedy in bringing ejectment in this suit and in not proceeding under Section 1020 of the Code of Civil Procedure,by an action of forcible entry and detainer. It can hardly be possible that this contention is seriously relied upon, as it has long been held that where the holder of the legal title to real estate is dispossessed, his proper remedy is by ejectment. (Gregory v. Lancaster County Bank, 16 Nebr. 411.) While Section 1020 of the Code would have permitted plain*420tiff in this ease to proceed by forcible entry and detainer, yet such provision, is plainly a cumulative and not an exclusive remedy. ’ ’

In the case of Deneke v. Miller, supra, the same contention was made as in this case and the court said:

“We are thus brought down to the pivotal question in the case: ' Will an action of right or to recover real property lie on behalf of a landlord against his tenant to recover possession of the property leased where the landlord claims that there has been a forfeiture of the lease by reason of a breach of the conditions thereof ? Our statutes seem broad enough to permit it, and such in effect is the holding in Cagwin v. Chicago, etc., R. Co., 114 Ia. 129, 86 N. W. 220. Moreover, the rule for this country in view of the statutes providing how tenancies may be terminated and rights of re-entry established now is that an action of right or ejectment will lie on behalf of a landlord in such eases. (See Warvelle on Ejectment, Secs. 150, 151, and cases cited.) And the action may be maintained on behalf of an assignee or grantee of the original landlord. (Warvelle on Ejectment, Sec. 153.) The remedy of forcible entry and detainer is regarded as cumulative and not exclusive. (Chadwick v. Parker, 44 Ill. 326, and Warvelle, supra, Sec. 151. * * *.

That the action of forcible entry and detainer does not supersede any common-law remedy of the landlord, see Bowman v. Foot, 29 Conn. 331. We have recognized the right of a landlord to maintain an action of right in Patton v. Bond, 50 Ia. 508. See also Roach v. Heffernan, 65 Vt. 485, 27 Atl. 71; Miller v. Havens, 51 Mich. 482, 16 N. W. 865. Many cases seem to hold that in the absence of a provision in the lease for forfeiture for breach of condition, the right does not exist, unless there be a statute authorizing it. See 24 Cyc. 1350, 1351, and cases cited. We need not decide this question now, for the lease before us provides for a forfeiture, and the statute (Code, Sec. 4208) authorizes forfeiture for nonpayment of rent and for a holding by the tenant contrary to the terms of his lease.”

*421We are, therefore, constrained, to overrule the assignment of error of appellant, and it follows that the judgment of the court below should be and it is hereby affirmed.

Affirmed.

Potter, Ch. J., and Kimball, J., concur.