6 Indian Terr. 481 | Ct. App. Ind. Terr. | 1906
(after stating the facts). Appellants ask this court to reverse the judgment of the court below because the complaint is one of unlawful detainer, and not of ejectment; and, as the proof fails to sustain the allegation as to notice to vacate, it is urged that the action of unlawful detainer cannot be maintained. But a reference to the complaint clearly shows this to be purely an action of ejectment. The complaint, it is true, alleges that some of the defendants had recognized the plaintiffs as their landlord; but the action is based, not in the termination of the tenancy, but on the title of the plaintiffs to the land. There is nothing in the law to prevent - a landlord from bringing an action of ejectment against his tenant after the term has expired, if he so desires. But, if he brings ejectment, he cannot show title by proving that the tenant recognized him as his landlord. He must allege and prove his title. And this was done in the case at bar. Plaintiffs did not rely upon the tenancy to establish
Error is assigned to the action of the trial court in overruling defendants' motion for continuance. It is claimed that defendants were surprised by the filing of the amended complaint, and that a continuance should have been granted in order to give them an opportunity to meet the new issues presented. A reference to the motion for continuance shows that a continuance was not asked for on the ground of surprise. It was based on the ground of absent witnesses, and the motion set out what the witnesses would testify, if present; and this evidence, as contained in the motion for continuance, - was introduced by defendants on the trial. This was all that defendants were entitled to.
Objection is taken to the introduction of certain evidences of title by plaintiffs, because they were not acknowledged and recorded, On this point it is sufficient to say that these instruments, transferring the right of possession to Indian lands from one Indian to another, have always been regarded more in the nature of bills of sale, and as such they need be neither acknowledged nor recorded.
Error is assigned to the action of the trial court in refusing to instruct the jury that, if the defendants had been in possession of the premises for three years prior to the institution of the suit, plaintiffs cannot recover. The defendants in their answer did not plead the statute of limitations, and therefore the question was not in the case and the court properly refused the instruction. Riley vs Norman, 39 Ark. 158.
Let the judgment of the court below be affirmed.