637 P.2d 1051 | Alaska | 1981
OPINION
Verne E. Robinson instituted a forcible entry and detainer action against David Johnson.
AS 09.45.150 of Alaska’s statutes governing forcible entry and detainer actions provides:
In an action to recover the possession on the land, tenement, or other real property where the entry is forcible or when the possession is unlawfully held by force, there shall be no inquiry into the merits of the title.
In Modrok v. Marshall, 523 P.2d 172, 174 (Alaska 1974), we said, “It is well-settled that where title to the property is in dispute, dispossession by [forcible entry and detainer] may not be ordered.”
The superior court’s affirmance of the district court’s judgment is reversed, and the matter remanded to the superior court with directions to remand to the district court for the entry of an order dismissing the forcible entry and detainer action.
. Alaska’s statutes pertaining to forcible entry and detainer are found at AS 09.45.060-, 160. See also Alaska R.Civ.P. 85.
. See also AS 22.15.050 which provides in part that “[t]he jurisdiction of the District Court does not extend to (1) an action in which the title to real property is in question.”
For a discussion of the historical basis of this type of jurisdictional limitation and this court’s criticism of such a limitation, see Stephens v. Hammersley, 550 P.2d 1268, 1270 (Alaska 1976).
. A townsite trustee’s grant of title can be set aside for “fraud, accident, or mistake.” Oswald v. Columbia Lumber Co. of Alaska, 425 P.2d 240, 246 (Alaska 1967).
. Mrs. Johnson testified that she and her husband were the occupants of the property at the time title to it was granted to Robinson and, further, that she and her husband had made the improvements upon which the trustee’s deed was based.
. See the following critical analyses of forcible entry and detainer laws: Clocksin, Alaska’s Summary Eviction Law — A Confused Anachronism, 4 UCLA — Alaska L.Rev. 56 (1974); Clough, The Case Against the Doctrine of Independent Covenants: Reform of Oregon’s FED Procedure, 52 Or.L.Rev. 39 (1972); Note, California Unlawful Detainer Procedure — A Proposed Legislative Change, 21 Hastings L.Rev. 491, 498-506 (1970).