This is аn action to recover possession of certain premises under the provisions of the Act concerning forcible entries and unlawful detainers.
It appears upon the face of thе complaint that the premises in question were leased to James Irwin, one of the defendants, by one Richard M. Treadway, who subsequently sold and conveyed the premises by deed to the plaintiff, and аlso assigned and transferred to him the lease in question, which was in writing; but it does not appear, and it is not аlleged, that Irwin subsequently attorned to the plaintiff or in any manner recognized him as his landlord.
An answer was filеd, setting up several defenses, which it is not necessary to notice, for we propose to сonsider the case as if before us on demurrer to the complaint. When the case was cаlled for trial the defendants moved that the case be dismissed, on the ground, in effect, that the Court had nо jurisdiction over the case made by the pleadings, which was, as claimed by defendants, substantially an аction of ejectment, and not an action within the meaning of the Act concerning unlawful detainers. The motion was allowed by the Court, and the plaintiff has appealed.
Regarding the plaintiff merely in the character of assignee of the lease, he certainly could not maintain this or any other action for the рossession, for by the assignment of the lease he acquired no reversionary interest in the land, but merely a right to receive the rent. If, then, he can maintain the action, it must be solely upon the ground that he has succeeded to the original landlord’s title, and by operation of law become entitled to all the rights and remedies which he had.
Upon inspection of the fourth section of the Act (Statutеs 1863, p. 653), it will be found that this remedy is conferred only upon “the landlord,’’ and is not given in terms at least to his succеssors in estate. Is, then, the vende,e or devisee, or heir (for they are all in the same category) of the landlord or lessor a “ landlord ” within the meaning of that section ?
The Act in question was designed to afford a summary remedy for the recovery of land as against a conventional tenant who holds over contrary to the terms of the lease, thereby relieving the landlord from the necessity of resоrting to the more costly and dilatory remedy afforded by the action of ejectment. It was not intendеd to apply to any case where the title to the land could be made a question, but only to сases where from the nature of the relation between the parties no such question could bе made because prohibited by law. Where the conventional relation of landlord and tenant exists the law does not permit the latter to dispute the title of the former. He is estopped by his lеase. Hence in such a case the landlord is not required to make proof of his title, but he may rest upon the lease and proof of a compliance on his part
In the present case the plaintiff, by his own showing, is not the conventional landlord. He is an entire stranger to the lease under which, as he alleges, the defendant holds. At the time the lease was executed, he had no estate in thе premises and no interest in the reversion. On the contrary, his estate has come to him since that time by purchase, and the defendant has not since such purchase attorned to him or in any manner recognized him as his landlord. Hence, before he can recover, he must prove his purchasе from the defendant’s lessor by the production of a deed sufficient in law to pass the estate, аnd must prove its execution and delivery; or, in other-words, he must prove his title, which is precisely what he is not allowed to do in this form of action.
For authority in support of the foregoing views the following cases are cited: Allen v. Smith, 7 Halstead, 199; Youngs v. Freeman, 3 Green, New Jersey, 30; Holland v. Reed,
Judgment affirmed.
Mr. Justice Rhodes expressed no opinion.