53 Tenn. 123 | Tenn. | 1871
delivered the opinion of the court.
This . action of forcible entry and detainer was commenced before a justice on the 1st of June, 1870, after the passage of the Act .of 9th February, 1870, c. 64, Shankland’s Statutes, 124. Judgment was rendered against the defendant on the 24th of August, 1870, and the cause removed into the Circuit Court of Bradley county on a petition for writs of certiorari and supersedeas, and a fiat granted by Hon. John B. Hoyl, Judge, on the 24th of September, 1870. The motion to dismiss the petition was properly overruled, although the . petition contains no good reason for not appealing. ' Under the Code, s.
The reason for the distinction between petitions for certiorari and supersedeas in forcible entry and detainer cases and other actions, was that no appeal was given by the original Act of 1821, c. 86, Car. & Nic., and no writ of possession cóuld issue until after the lapse of twenty days from the judgment, within which time the parties could remove the cause into the Circuit Court by certiorari, under the Acts of 1821, e. 14, s. 13; 1822, c. 35, ss. 2, 3; 1841, c. 86, s. 6. See 1 Meigs’ D., 534, No. 985; Nich. Sup., 165, 168; Earl v. Rice, 10 Yerg., 233. An appeal was first authorized in such cases by the Act of 31st December, 1849, c. 131, s. 3, within five days, and, as in other cases, by the Act of 7th February, 1850, c. 74, s. 1. The last named provision was re-enacted in the
The Act of 9th February, 1870, among other changes in the law, authorizes the writ of possession or restitution to be awarded immediately, provided that, if the defendant prays an appeal, the plaintiff shall execute the bond therein prescribed, conditioned that he will pay all costs and damages which may occur from wrongfully enforcing the writ, etc., and authorizes the removal of the proceedings into the Circuit Court within thirty days by petition for writs of certiorari and supersedeas, and directs the Judge to grant said . writs if merits are sufficiently set forth, and to require bond and security, etc. Under this Act it is necessary, if the remedy by petition is resorted to, that the petitioner shall, in his petition, present a merito-ridus case; and we hold that the petition in the case now before us is sufficient, as it alleges that petitioner was put into possession by L. H. Hughes “about the beginning of the year 1870, and that Hughes and his vendors held possession of the premises in controversy "Tor more than twenty years previously.”
This brief review of the statutes and previous decisions is deemed proper because this court, on hear
It appears from the evidence that the house and lot, which seem to be the real subject of controversy, are situate near the dividing line between two quarter sections of land claimed respectively by the plaintiff\ Elliott, and L. H. Hughes; that defendant alleges he was placed in possession by the agent of Hughes, and that this line was not actually run by any person other than the plaintiff, or by his procurement, until after the commencement of this suit, when Blackburn run it, “drove down a horse-bone,” and made what he styles “the horse-bone corner.”
The plaintiff, in his evidence as a v,fitness, did not claim to have had the actual personal possession of the land, but alleged that he first held possession of it by Sally Epperson as his tenant, next by Elizabeth Tucker, to whom he made a deed, which was can-celled in March, 1870, and that defendant told him he had rented from her in case the house “fell” on her side of the line, but if the house was on plaintiff’s side he would be his tenant. The plaintiff further stated that he had procured Blackburn to run the line before the commencement of this suit, and that by this survey the house was “thrown” about four or five feet on plaintiff’s side of the line. Blackburn proved that he made the survey both before and after the commencement of the suit, and that on the last survey the line “went through the house at one corner and out at the door, which left the greater part
The record details an agreement between the parties on the trial as to the deeds and grants under which the adjoining quarter sections are claimed, and it is quite manifest, from these and other facts appearing in the record, that this action of forcible entry and detainer is an action of ejectment in disguise, and that its real object is to try the title to the house and premises in actual controversy.
It is urged in argument that his Honor erred in instructing the jury that “the plaintiff .can not maintain this action unless he shows that previous to its commencement he had been in possession of the disputed premises either by himself, tenants or agents.” If there is any error in this charge it is in favor of the plaintiff; as it seems to imply that he could maintain this action if he held possession at any time.
It does not clearly appear from the proof that any one was in the actual possession when defendant’s possession commenced, nor is it satisfactorily shown when Sarah Epperson or Mrs. Tucker ceased to live in the ■ house, or whether they, or either of them, or Moreland or the plaintiff, or any other person whatever, held the actual possession when defendant entered as tenant of Hughes, though it is most probable that he immediately succeeded Moreland.
There is no error in the charge of the court that
There is not one word of evidence in the record showing or tending to prove that the defendant either took or held the possession by force or ■ unlawfully detained the same within the meaning of the statute authorizing this action. The weight of evidence shows that he was the tenant of Hughes and not of plaintiff. The case was submitted to the jury upon full and appropripate instructions by the Circuit Judge, or at least upon instructions of which the plaintiff can not complain; and, • both upon the law and facts, it appears there is no error in the judgment of the court below, and it will be affirmed.