3 Mont. 387 | Mont. | 1879
This1 is an action under the Forcible Entry and Detainer Act, instituted by the plaintiff to recover the possession of a portion of the Original Quartz. lode, situate in the Summit Valley Mining District, Deer Lodge county.
Our statute, giving this action and defining its nature and extent, is in effect but declaratory of the common law, as modified
This statute was designed to protect the possession of real property. It provides a summary remedy when such possession is invaded, either by a forcible entry, or by a peaceable entry in the temporary absence of the person in possession or by unlawful detainer. It restricts the issue at the trial to an inquiry into the actual and peaceable possession of the complainant, and the forcible entry or. unlawful detainer of the defendant. It makes a whole year’s peaceable, actual possession by the defendant a bar to the action, but it permits no inquiry either by complainant or defendant as to the right of possession. It inquires after the fact of peaceable, actual possession, but does not trouble itself as
1. After these general observations as to the meaning and purpose of the statute in question, we come now to inquire: Did the court err in excluding the evidence of defendant’s title to the mining ground described in the complaint % In other words, is title an issue in an action of forcible entry and detainer ? This question might be satisfactorily answered by ascertaining what it is necessary for the plaintiff to establish in order to maintain the action. And for this purpose it is only necessary to again look at section 643 of the act, where it is declared that the complainant shall only be required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to
At common law no allegation beyond possession was necessary, and of course mere possession was sufficient to support the.prosecution. 2 Whart. Grim. Law, 2042. A party peaceably in the actual possession of lands at the time of a foi-cible entry, or in the constructive possession thereof at the time of a forcible holding ovei’, is entitled to proceed under the statute of foi'cible entry and detainer, though he is neither seized of a freehold nor possessed of a term of years in the premises. 4 Black. Com. 148.
The defendant can neither go into evidence to disprove the title of the plaintiff nor to establish his own. The question of title cannot be raised ; the possession only of the plaintiff must appear; and the party in peaceable possession cannot be legally ejected by force, though not entitled to such possession ; but the question of right does not arise, and the defendant cannot set up his right as a defense to his forcible entry or unlawful detainer.
It is claimed, however, that the California Forcible Entry and Detainer Act, and the decisions thereunder, have made an innovation upon the general rules as established by this long and unbroken line of decisions, and that the same are applicable to our statute. This claim requires examination.
Section 3 of the California Act of 1866 is as follows: “ If any person shall in the night time, or during the absence of the occupant of any lands or tenements, unlawfully enter upon such lands or tenements,” etc., such person shall be deemed guilty of forcible entry, etc. In the case of Conroy v. Duane, 45 Cal. 601, arising under this act, the court held, not indeed that the defendant may make a defense by proving title and the right of possession in himself, as if these things were issues in the case, but that title and the right of possession may be proved in the defendant to show his good faith -in making the entry, and that the same was not unlawful. Also, in the case of Powell v. Lane, 45 Cal. 678. the court say that an entry is not unlawful within the meaning of the third section of the act (quo’ted above), which was made peaceably and in good faith; referring to Shelby v. Houston, 38 Cal. 410. And in Townsend v. Little, 45 id. 676, it was held, that if' the defendant entered upon the land in good faith, believing she had a legal right to enter, the action of forcible entry and detainer could not be maintained against her.
But I apprehend that even under the California statute, the circumstances in mitigation or in excuse of the entry should be properly pleaded in order to be proved, and if these decisions were applicable to the case in hand, under our statute, the failure of the answer to make these averments would preclude their proof. But our statute wisely, it seems to me, does not submit the question of the propriety of making a forcible entry to the
The party entitled to the possession cannot take or hold such possession, and thereafter, in action of forcible entry, have his right to such possession adjudicated. But the proceedings under the statute were designed to undo the act of the party in taking or retaining forcible possession under a claim of right, and to place the parties in their former position, so that in a proper action their rights might be adjudicated. The Forcible Entry and Detainer Act was not designed to supersede the action of ejectment.
2. Our statute makes an entry lawful where it is given by law, and it is claimed by appellant by virtue of the California decisions before cited, that an entry is given by law where the party owns the property upon which he peaceably enters, even though another temporarily absent claims the possession. We do not understand that an entry is given by law until there has been an adjudication of the right, and a judgment awarding the possession. If land is bid off on a judgment, and the time of redemption has expired, a writ of assistance would issue to put the purchaser in possession. In such a case an entry would be given by law. But where the rights of the parties are undetermined, and the right of possession is claimed by both, if one of them, in the temporary absence of the other, takes peaceable possession, it cannot be said that his entry is given by law. Our statute pointedly declares that in such a case" the person making the entry shall be deemed guilty of a forcible entry, and treated accordingly.
Our statute provides (§ 643) that quiet possession by the defendant for one whole year shall bar the prosecution.
If it requires a whole year’s quiet possession by the defendant to bar the plaintiff’s action, so, for the same reason, it ought to require a whole year’s silence by the plaintiff before his consent to the defendant’s possession can be presumed. The quiet possession of the defendant should ripen into a defense under the statute at the instant that the plaintiff by his silence forfeits his right of action. Until that period the plaintiff may maintain his action, for the reason that the defendant can interpose no bar to the prosecution. If under the statute quiet possession for 364 days by the defendant is no defense, then the plaintiff’s silence for that period ought not to bar his action. The plaintiff’s silence then gives no advantages, and confers no rights upon the defendant unless the same is continued for one whole year. It follows, therefore, that if the defendant makes a forcible entry, or a peaceable entry in the temporary absence of the plaintiff in possession, the plaintiff has one whole year in which to institute his action to recover the possession, unless he sooner gives his con-' sent to the defendant’s possession, and such consent cannot be presumed by his silence until one year has elapsed.
If after such an entry by the defendant, the plaintiff may fail for one day or one month to prosecute his action to recover possession, he may so fail for any length of time short of the period when the defendant’s quiet possession defeats his action, for as long as the possession of the defendant does not ripen into a right, so long the silence of the plaintiff creates no bar.
The testimony being competent for one purpose, it was properly admitted.
It is, therefore, ordered that the judgment be affirmed with costs.
Judgment affirmed.