149 P. 180 | Nev. | 1915
By the Court,
This is an action for the restitution of certain real property in the county of Washoe, alleged in the complaint to have been leased by respondent to appellant. The answer denied that the appellant entered or was in possession of the property under and by virtue of a lease.
" A tenant of real property for a term less than life, is guilty of * * * unlawful detainer,” under certain enumerated conditions thereafter specified.
It is contended by counsel for respondent, and it was so held by the court below, that title to property cannot be determined in an action in unlawful detainer. Authorities are cited, particularly from California, holding that a defense such as was sought to be interposed in the case at bar will not be considered in such an action. While entertaining the highest respect for the decisions of our sister state, California, we are not persuaded, upon an examination of those authorities, that they are founded upon sound reasoning. What is known as an action in unlawful detainer, designed to afford to a landlord a summary remedy for the recovery of demised premises, was unknown to the common law. (Taylor, Landlord and Tenant, sec. 718.) In the common-law actions of forcible
By section 559 of the civil practice act (Rev. Laws, sec. 5501) it is provided:
" There shall be but one action for the recovery of any debt, or for the enforcement of any right secured by mortgage or lien upon real estate, or personal property, which action shall be in accordance with the provisions of this chapter.”
By section 576 of the civil practice act (Rev. Laws, sec. 5518) it is provided:
"A mortgage of real property, shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to take possession of the real property without a foreclosure and sale.”
Under the provisions of this last-mentioned section, this court has repeatedly held that a deed absolute in form, but given as security for a debt, was in fact a mortgage, and would be regarded in equity as such. In Orr v. Ulyatt, 23 Nev. 134, 140, 43 Pac. 916, this court, construing the section last mentioned, held that " a mortgage is not an alienation, but mere security for a debt.” If the relationship between the parties was in fact that of mortgagor and mortgagee, then the relationship of landlord and tenant could not be held to exist. In such case, respondent would be limited to the remedy of foreclosure
"The provisions of this act, relative to civil actions, appeals, and new trials, so far as they are not inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter."
A section of the chapter prescribes what may be set up in the pleadings where the action is in forcible entry or forcible detainer, but no specific reference whatever is made to any limitations as to pleadings in actions for unlawful detainer.
Section 14 of article 6 of the state constitution (Rev. Laws, sec. 329) provides:
"There shall be but one form of civil action, and law and equity may be administered in the same action.”
The first section of our civil practice act (Rev. Laws, sec. 4943) provides:
" There shall be in this state but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs. ”
There is nothing in the nature of the action of unlawful detainer inconsistent with the application of the general provisions of the civil practice act, which permits any defense, whether legal or equitable, to be interposed in civil actions generally. As said in Taylor’s Landlord and Tenant, sec. 720:
"The statute applies only to cases where the conventional relation of landlord and tenant subsists, and not
See, also, Hamill v. Bank of Clear Creek Co., 22 Colo. 384, 45 Pac. 411; Reitze v. Humphreys, 53 Colo. 171, 125 Pac. 522.
If the transaction between appellant and respondent would in equity constitute a mortgage, but it should be held that appellant could not be heard to show the true relation of the parties as a defense to the action in unlawful detainer, then we would have the appellant, as mortgagor, being dispossessed by the mortgagee upon the theory that the relationship of landlord and tenant existed between them, after which, in a separate action, in which the true relation of the parties could be shown, the respondent would be in turn dispossessed and the appellant restored to possession. After these two suits, fruitless of results, were concluded, the mortgagor would be relegated to his one real remedy of foreclosure.
Judgment reversed, and cause remanded for a new trial.