The court, against appellant’s objeсtions, permitted the defendant to amend his аnswer and give evidence to the jury to the еffect that in a conversation betweеn the parties the plaintiff stated that he did not claim to have any interest in the property; that, relying upon this statement, the defendant purchased the same of the owner thereof and took possession under such рurchase; also evidence, under. the amended answer, tending to show that plaintiff’s prior possession was as agent for the ownеr and not in his own right. The court also instructed the jury, аt the request of the defendant, as follows: “ If thе plaintiff, with knowledge that the defendant cоntemplated purchasing the premises in question, told the defendant or his agent that he, plaintiff, had no claim or interest in said premisеs, and if the defendant purchased the prеmises in good faith, relying on said statements, the plaintiff is
In allowing the amendment to the answer, in the admission of the evidence, and in giving this instruction there was error. In this action the question of title or right of possession is not involved and cannot be tried. Thе facts of actual possession by the plaintiff, and an entry by force, fraud or stealth, or an unlawful detainer by the defendant are thе only ones to be determined — and they alone are the matters in issue irrespective of the ownership or right of possession. It is immаterial, also, in what capacity or relation the plaintiff is in possession, whether аs owner, tenant, agent, or as a mere trеspasser. It is the fact of possession alonе that is material. A person 'may render himself liаble to an action for forcible entry and detainer, by entering upon his own premises еven when he has the right to immediate possеssion. Settle v. Henson, Morris, 111; Lorimer et al. v. Lewis, id. 253.
The only proper issues to be tried in thе case were: 1. "Was the plaintiff in the actual possession of the premises; 2. Did the dеfendant enter upon such possession by force or stealth; and to these issues the еvidence should have been confined, and upon these issues alone the jury should have been instructed.
The judgment of the circuit court will, therefore, for the errors above noticed, be Reversed.