| Or. | Jun 15, 1854
No pretence is made that plaintiff or his wards were ever in the possession of said claim, but the right to a recovery is based upon the fact that, when the said Tibbetts died, the title to such claim descended to, and became vested in, his said children.
Section 23 of the forcible entry and detainer act {Laws 1851 and 1852, page 38) provides, that “the estate, or the merits of the title, shall in nowise be inquired into in any complaint which shall be exhibited by virtue of this act.” It is impossible to sustain this action without inquiring into “ the merits of the title” to the claim in question, for plaintiff does not seek to recover on account of a former possession from which he has been evicted, but because the title is in his wards. Not only must defendant be allowed to controvert this title, if the action proceeds, but he must be permitted to establish, if he can, the title under which he holds possession. The whole ease then becomes a question as to the validity of conflicting titles. The sole object of this action is to determine the right of immediate possession to real' estate, • without reference to title, and to hold otherwise would be to allow justices of the peace to adjudicate titles to land contrary to the express provisions of the organic act. It is said that the commissioner of the general land office has decided, that the heirs of persons who died before the passage of the donation act cannot hold by virtue of any settlement made by such decedents prior to that time; but no opinion'is given upon this point. The first objection taken is fatal to the action.