delivered the opinion of the court:
Wе may premise by saying that the action of forcible entry and detainer, or forcible detainer, is a special statutory proceeding, summary in its nature and in derogation of the common law, and it follows that the conditions and requirements that the statute prescribes in conferring jurisdiction must clearly exist and that the mode of procedure provided by it must be strictly pursued. Steiner v. Priddy,
The complaint herein charges “that the said premises were vacant and unoccupied, and that said John W. Fitzgerald and wife, Elizabeth M., made entry therein without right or title, and now unlawfully withhold the possession thereof from the said John Quinn.” The only claims that are or can be made are that the case made by the complaint is based either upon the third clause or upon the second clause of section 2 of the Forcible Entry and Detainer act. (Rev. Stat. chap. 57.) Apparently it is based upon the third clause. Said section 2 provides as follows: “The person entitled to the possession of lands or tenements may be restored thereto in the manner hereafter provided: * * * Third,—When entry is made into vacant or unoccupied lands or tenements without right or title.”
In the case at bar there is no ground whatever for saying that the strip of land off of the north side of lot 19 that was fenced in and used with pаrt of lot 20 was vacant and unoccupied when appellants got their deed and moved into the house. It was, at and prior to that time, in the actual and exclusive possession and occupancy of the tenants who lived in the house and constantly used thе board walk and the entire premises enclosed by the fence, and the possession of such tenants was, in contemplation of law, the possession of the landlord under whom they held. Such being the condition of the property, the appellants entered into possession of the entire enclosed premises in a peaceable and quiet manner under their deed from Taylor. It is utterly impossible that land should be fenced in and be constantly, exclusively and peaceably used by a particular person or particular persons, under claim of right, and such land yet be vacant and unoccupied.
The contention of appellee seems to be substantially this: That the statute provides that when entry is made into vacant or unoccupied lands or tenements without right or title, the person entitled to the possession of the same may be restored thereto under the provisions of the statute; that the premises in dispute were at some time vacant and unoccupied, and some grantor, either immediate or remotе, of appellants, entered into such vacant or unoccupied ground without right or title, and appellants can have no other or further right or title than their grantors had, and therefore appellee can maintain forcible entry and detainer under this third clause of section 2 of the statute. In making this argument appellee loses sight of the true intent and scope of the Forcible Entry and Detainer act and of the several clauses of this section 2. Three general classes of cases are provided for —one where the original entry was forcible or unlawful; another, where the original entry was lawful but the detention has become illegal; and the other, where the entry was peaceable but the possession unlawfully withheld. The first clause of the section makеs provision for the case of a forcible entry, and the third clause for the case of an entry without right or title into vacant or unoccupied lands or tenements, and these cases both fall within the first of the general classes of cases above noted. The fourth, fifth and sixth clauses make provision for cases that have their origin in contract, and fall within the second of the general classes mentioned, and the case specified in the second clause of the statute constitutes the third of said classes.
Upon the first question that arises in the case we have to do only with the first of these general classes,—that is to say, with the cases for which provision is made in the first and third clauses of the section. Whether a forcible entry is made into premises that are in the possession of another, or an entry is made into vacant and unoccupied lands or tenements without right or title, in either event the offense is consummated the moment such entry is made, and the right to maintain an action of forcible entry and detainer therefor vests at once,'—in the one case in him whose actual possession is invaded, and in the other in him whose constructive possession, growing out of paramount title, is invaded. Such right of action does not pass to the assignee of the party in whom it so vests. (Dudley v. Lee,
If we should assume the correctness of the contention that the grantor, either immediate or remote, of appellants made entry into the strip of ground in controversy without right or title when it was vacant or unoccupied, yet it clearly appears that such entry was prior to August 21,1883, when appellee obtained a deed for lot 19 from Mary A. E. Harrison and her husband, and under the doctrine we have stated the cause of action for the illegal entry did not pass to appellee by the deed which he reсeived. So, also, since such entry was many years before appellants got their deed, in 1888, and it does not appear they were in any way privies to or had knowledge of the tort, and since they purchased for a valuable consideration and entеred into the possession of the premises in good faith and in a peaceable and quiet manner under their deed, it is manifest that an action does not lie against them, under the statute, for the unlawful entry, without right or title, into the premises when they weré vacant and unoсcupied,—and this even though the original entry by their immediate or remote grantor may have been such.as falls within the statute; and the conclusion must necessarily be that appellee has no remedy against appellants under the third clause of section 2 оf the Forcible Entry and Detainer act.
It is claimed by appellee that since demand for possession was made by him and possession refused by the appellants, he, appellee, has a remedy under the second clause of the section, which mаkes provision for a restoration of possession when a peaceable entry is made and the possession is unlawfully withheld. Under a former and somewhat similar statute, (R. L. 313; Gates’ Stat. 313; Rev. Stat. 1845, 256;) which gave the action “if any person shall make an entry into any lands, tenements or other possessions, except in cases where entry is given bylaw,” as contradistinguished from a forcible or violent entry, it was held by this court that before the action could be maintained there must be an entry upon the actual possession of anоther, and that it was not sufficient to charge in the complaint that the complainant’s right to the possession was invaded by the entry. (Atkinson v. Lester,
In Thomasson v. Wilson,
These authorities indicate that there can be no right of action under the second clause of the statute except where the peaceable entry is made upon premises that are in the actual possession of the complainant or of those to whose rights he has succeeded, and our attention is called to no authorities that are to the contrary. Sound reason leads to the same conclusion. A different interpretation of the statute would render insecure the possession of persons who have for many years been in the actual occupancy of improved real estate, claiming ownership, and it would virtually abrogate the security and repose afforded by the statutеs of limitation. It surely was not the legislative intention that a complainant can, in the summary way prescribed by the statute and without trial of title, turn out of possession a person who for years has occupied land under claim of ownership, by merely showing that at some remote time in the past such land was vacant or unoccupied, provided some one other than the defendant then held the government or legal title, and that such title was subsequently, by mesne conveyances, transferred to the complainant. Such a construction of the statute would be a constant menace to the property of the citizen, and would disturb the peace and welfare of society.
Among the facts agreed upon in the stipulation are these: That lot 19 has never been improved or occupied by plaintiff or his grantors in any way; that plaintiff never was in the actual possession of the premises contained within the enclosure; and that all of lot 19 that lies south of the fence was open prairie at the time he obtained his deed, and that it has never been fenced or improved. Of course, these facts exclude any conclusion that either he or his grantors ever had actual possession of the strip in'controversy, and, as we have seen, such possession is essential to a right of aсtion under the second clause of the statute.
It is not made to appear in this record that the possession of appellants is unlawful. No privity of estate is shown to exist between them and appellee. When thqy, in 1888, were placed in quiet and peaсeable possession under their deed from Taylor, they found the property in the actual and exclusive possession of their grantor and his tenants. The person who is in the actual and peaceable possession of land will be deemed to be rightfully in possession, and the burden of proof is upon him who would dispute that possessory right. (McLean v. Farden,
It is urged that either the immediate grantor or some prior grantor of appellants wrongfully entered upon lot 19 and inclosed a part thereof. This is but an assumption. It is just as reasonable to presume that some former owners of lots 19 and 20, respectively, agreed upon the fence as the boundary line between the two lots, or that, prior to the bringing оf this action, appellants and their grantors had been in the actual and adverse possession of the strip of ground in controversy for a period of twenty years or more. But these are questions that might properly arise in an ejectment suit. They cannot bе tried in this statutory proceeding, where the question of title is not in issue.
The rulings of the circuit court upon the propositions of law submitted to it were inconsistent with the views we have expressed, and were erroneous. The Appellate Court erred in affirming the judgment of the circuit court. The judgments of both courts are reversed, and the cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.
Reversed and remanded. u