48 W. Va. 121 | W. Va. | 1900
This is an action of unlawful entry and detainer brought by Chester Brumbaugh before a justice in Tucker County against Jacob A. Sterringer for the possession of a house and lot in the town of Thomas. On the 4th day of January, 1899, the return day of the summons, defendant appeared, and moved the justice to quash the summons, which motion was overruled, to which ruling defendant excepted, and filed his bill of exceptions No. 1. The defendant then filed his affidavit, stating that the title to the real estate described in the action would come in question upon
The defendant’s first bill of exceptions was taken on the ruling of the justice refusing to quash the summons, because it did not conform to the provisions of section 212, chapter 50, Code, in that defendant was required “to answer the complaint of Chester Brumbaugh in a civil action for the recovery of the possession of lot No. 37,” etc., when said section requires it to be “to answer the action of plaintiff for unlawfully withholding from the plaintiff the premises in question,” etc. It is stated further on in the summons that the said defendant “unlawfully withholds the possession of said premises from the plaintiff.” It is not the purpose of the statute to prescribe a particular form, but the summons is only required “to be sufficient on its face to show wuat is intended thereby.” The summons in this case gives the defendant ample notice that he is required to answer the complaint of plaintiff in an action for the recovery of the possession of the premises described, which defendant is unlawfully withholding from plaintiff. This contains all the elements of the summons required by said section 212, although not in the precise words of the statute. Section 26, chapter 50, provides that “no summons shall be quashed or set aside for any defect therein, if it be sufficient on its face to show what is intended thereby,”— which applies as well to a summons in unlawful detainer as to that in any other proceeding. It was the intention of the lawmakers to simplify the pleadings in justices’ courts, and to have the same as unteehnical as might be consistent with the due administration of justice in that court, established so near to the people, and usually held by men not familiar with the technicalities of the law.
Plaintiff’s first assignment of error, that the certiorari should not have been awarded, as “the record presented did not warrant it,” and the second, in overruling plaintiff’s motion to dismiss the writ as improvidently awarded, are to the same effect.
The fourth bill of exceptions taken by defendant was to the action of the justice in overruling the demurrer to plaintiff’s evidence. Plaintiff’s counsel in his brief calls attention to the fact that, after the return of the verdict, the defendant did not ask the justice to set the same aside and grant him a new trial, and, not having done so, he will be held to have waived any and all objection to the verdict. The verdict was a conditional
Admit the answer of defendant to be true; does it appear therefrom that the title to real property is in question, or would come in question, on the trial of said cause? It shows that he has a claim, but it is purely equitable, and can only be enforced in a court of equity, and the evidence in the case does not disclose any other right or title in the defendant. He has no writing or colorable legal title, but is in possession merely on his equitable right as one of the purchasers, may be lawfully in possession, but can only maintain his right to hold in a court of equity. In Dobson v. Culpepper, 23 Grat.352, Judge Moncure says the provisions of the Code (section 20, chapter 135), con cerning equitable defenses in ejectment (which is the same as section 30, chapter 90, Code), applies as'well to the action of unlawful detainer as to the action of ejectment, which are concurrent remedies in such case, and continues: “A vendor of land who has put the p urdía ser in possession, whilst the contract remains executory, has the legal title as to such purchaser, and, unless tlie said provisions of the Code apply to the ease, may demand possession of the purchaser, and recover it of him by an action of ejectment or unlawful detainer, at least, unless since the. date of the purchase the interest of the vendor in the land has terminated, or been transferred by him to another.” 2 Bart. Law Prac. p. 1167; Burnett v. Caldwell, 9 Wall. 290, 19 L. Ed. 712; Williamson v. Paxton, 18 Grat. 475; Locke v. Frasher’s Adm’r, 79 Va. 409. Mr. Hogg, in his most valuable work on
Plaintiff’s third assignment, that the court erred in dismissing the cause and reversing the-action of the justice, from what has just been said, must, of necessity, be sustained, however inequitable it may appear, in view of the evidence in the case. The defendant has evidently mistaken his defense. The conclusion arrived at in the case renders notice of the fourth and fifth assignments unnecessary. The judgment of the circuit court will be reversed, and that of the justice affirmed.
Reversed.