38 Ark. 257 | Ark. | 1881
The Act of March 2, 1875, under which this action was brought, is, as was remarked in Dortch et al v. Robinson et al, 31 Ark., 296, a re-enactment of Chapter 72 —title, “Forcible Entry and Detainer” — of Gould’s Digest; and it was decided in McGuire v. Cook, 13 Ark., 448, that the remedy provided by it is not intended to take the place of the action of ejectment, but its object is to restore possession forcibly taken or unlawfully detained, without regard to the ownership or title to the property. It can only be resorted to in the case of a forcible entry, or a turning out by force, or when the plaintiff parted with the possession under some contract or agreement, express or implied, that the possession should be restored to him.
Force is the gist of the action for a forcible entry and detainer; but implied force, as when the defendant entered peaceably, though unlawfully, is not sufficient; it must be', actual and hostile. McGuire v. Cook, (supra.)
The second section of the act is as follows :
“Sec. 2. If any person shall enter into or upon any lands,, tenements, or other possessions, and detain or hold the same with force and strong hand, or with weapons, or by breaking-open the doors and windows, or other parts of the house,, whether any person be in or not, or by threatening to kill’,, maim or beat the party in possession, or by such words and! actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors or carrying-away the goods of the party in possession, or by entering' peaceably and then turning out by force, or frightening,, by threats or other circumstances of terror, the party to yield’ possession ; in such case every person so offending shall be-deemed guilty of a forcible entry and detainer within the meaning of this act.”
The first and third instructions given for the plaintiff were erroneous, and as there was no proof that the defendant entered into and held possession of the premises with force and strong hand, the verdict was not supported: by the evidence; and the motion for a new trial ought to have; been granted.
The judgment is reversed, and the cause remanded..
