delivered the opinion of the court.
Plaintiff, Harry Boner, brought an action of forcible entry and detainer in justice of the peace court against defendant, Irene Knight, to recover possession of certаin real property located in the Town of Lusk, Wyoming. Judgment was for the plaintiff, and defendant appealed to the district court.
When the matter came on for trial de novо in the district court plaintiff, without objection, put in evidence a warranty deed dated July 10, 1960, by virtue of which the parties acquired title to the premises involved as joint tenants with right of sur-vivorshiр; a warranty deed dated July 6, 1966, whereby the defendant conveyed her interest in the premises to the plaintiff; and a copy of a stipulation entered into in open court on July 17, 1967, between the parties in settlement of a bastardy proceeding brought by the defendant against the plaintiff wherein, among other things, it was agreed that defendant, who was then making hеr home on the premises, would vacate the same on or before October 1, 1967, and if not “she shall be deemed to be a tenant at sufferance and subject to immediatе removal by an action in forcible entry and detainer by the defendant [plaintiff here], and the plaintiff [defendant here] shall assert no defenses to said action.” It was also stipulated that proper notice to quit had been served and that defendant was still in possession of the premises. Thereupon plaintiff rested his case.
In defense of the рroceeding the defendant took the position that the stipulation concerning plaintiff’s right to possession of the premises was entered into by the defendant and her then аttorneys under a misapprehension of the facts brought about through concealment by plaintiff of certain financial transactions between plaintiff and a bank relating tо the property and defendant’s automobile and that the deed from defendant to plaintiff whereby defendant conveyed away her interest in the premises and relinquished her equal right to possession thereunder was void because obtained by plaintiff through misrepresentation, fraud and deceit.
When defendant undertook to offer evidence in supрort of her theories, objection was made on the ground that the derivation of plaintiff’s title was incompetent, irrelevant and immaterial and on the further ground that the matters rаised constituted equitable defenses which could not be injected into an unlawful detainer proceeding. The objection was sustained and defendant, after making an extensive offer of proof which we find unnecessary to relate in any detail for purposes here, and Which offer was also rejected by the trial court, rested her case. Thе district court in disposing of the appeal found that plaintiff was entitled to possession and entered its order affirming the judgment of the justice court. Defendant appeals;
In рresenting the matter here counsel for defendant in his brief says:
“The issue in this appeal is a narrow one: Is the defendant in a forcible entry and detainer action, being a formеr joint owner of the property with attendant joint right to possession, entitled to establish as a defense to eviction by the other joint tenant that the title in the *207 evictor was obtained from the defendant evictee by misrepresentation, deceit and fraud and therefore that the instrument vesting such title in the evictor is void and of no force and effect with the resulting continuing right in the defendant to occupy the premises.”
As nearly as we can determine, the argument of defendant that the issue should be answered in the affirmative is predicated upon the proposition that the proffered evidence was admissible as tending to show that the defendant took possession of the premises and continued in possession under “color of title,” which if established would defeat the action of unlawful detainer.
The difficulty with defendant’s carefully articulated statement of the narrow issue on this aрpeal and the argument in support thereof is that it entirely ignores the underlying and significant circumstance of the force and effect of the stipulation in the bastardy proceeding. Although the contention was made in the trial court that the stipulation was vulnerable for the reason stated above, the point is neither presented nor argued herе by the defendant.
Having thus waived any claim of infirmity in the stipulation, the defendant must be held bound by it and that in turn bears heavily on defendant’s only defense for the reason that regardless of what hаd gone on before by way of entry or possession, the stipulation on its face established the relationship of landlord and tenant between the parties on and after October 1, 1967. From that time on defendant occupied the premises as a tenant at sufferance and upon her failure to vacate after proper notice terminating the tenancy, the plaintiff was well within his rights in bringing an action for unlawful detainer pursuant to the provisions of §§ 1-677— 1-692, W.S.19S7. The suggestion of defendant that the appropriate action herе was in ejectment is answered in Hurst v. Davis, Wyo.,
The only determination to be made in the proceeding is “the right or fact of possession.” Jenkins v. Jeffrey,
We fail to grasp the force of the argument. In the first instance plaintiff, by his complaint, conceded that defendant’s entry was lawful and consequently the exclusion of defendant’s evidence to establish such fact, even if erroneous, in no way prejudiced the defendant. In addition, of course, evidence of the purpose of defendant’s entry and the character and extent of her possession was immaterial in view of the stipulation that on and after October 1, 1967, she occupied and possessed the premises as a tenant by sufferance. See Ferguson v. Haygood,
The further argument that the evidence was offered to show defendant was in possession under “color of title,” overlooks the fact that the deed of July 10, 1960, conveyed to defendant an undisputed title to the premises as a joint tenant. Such an instrument does not establish “cоlor of title” for the reason that the term “color of title” is well defined as meaning an instrument which has “a semblance or appearance of title, but is not title in fact or lаw.” McCoy v. Lowrie,
What defendant’s contention really boils down to, as indicated by the offer of proof and the argument presented here, is that the trial court erred in refusing to admit evidence tending to establish an equitable dеfense, i. e., the rescission of the deed to plaintiff because of alleged fraud and deceit and restoration of defendant’s right of possession as a joint tenant. Regаrdless of what the rule might be elsewhere, it has long been the rule in this jurisdiction “that neither the court of the justice of the peace nor the action of unlawful detainer is designed to try equitable defenses.” Ferguson v. Haygood, supra,
Judgment affirmed.