Joseph Warren v. Francis Kelly, 17 Tex. 544

Lipscomb, J. This suit was brought by the appellee before a Justice of the Peace, for a forcible entry and detainer, under the Act of the Legislature of the 15th March, 1848, (Hart. Dig. p. 449 ;) and believing, as we do, that whether any of the supposed errors presented by the record can be sustained, depends upon the construction of the first

Section of the Act under which the suit was brought: we will here transcribe it. The

Section reads as follows, i. e. “ That if any person shall make an entry into any lands, ten- ” ements, or other real property, except in cases where entry “ is given by law, or shall make any such entry by force, or if “ any person shall wilfully and without force, hold over any “ lands, tenements, or other real property, after the determin- “ ation of the time for which such lands, tenements, or other “ real property, were let to him, or to the person under whom 11 he claims, after demand made in writing for the possession “ thereof, by the person or persons entitled to such possession, “ such person shall be adjudged guilty of forcible entry and “ detainer, or forcible detainer, as the case may be, within the “ intent and meaning of this Act.” It is very obvious that the

Section embraces two classes of eases, for. the exercise of the

summary remedy. The first, and, as we regard it, much the most important for the preservation of the peace, is a forcible entry and detainer, where there is no subsisting relation of landlord and tenant, between the parties ; and the other, when that relation does exist. In the first, the written notice to surrender the possession, required by statute, does not apply. In the second, that notice must be given before the suit is brought. This case being of the first class, it was not necessary to give the notice at all.

In the case before us, however, if we are in error, and the notice should or ought to be required in both classes of cases, still it could not be available for the appellant, because it should have been taken in the commencement of his defence, and it was not until the case was put to the jury that the objection was made. This last view, however, is not to be regarded as a manifestation of a want of confidence in the correctness of the construetion we have given to the statute.

We therefore believe the Court below did not err in refusing to instruct the jury, that the notice was essential to the plaintiff’s right to recover. It will be seen that the Act of 1848, the first

Section of which we have transcribed, contains no inhibition against bringing in controversy the estate, or merits of the title to the land in question. The Act of February 5th, 1840, providing a

summary remedy to enable landlords and lessors to obtain possession of lands and tenements unlawfully detained or withheld from them, by the 11th Section, (Hart. Dig. Art. 1767,) has an express provision, that “ the estate, or merits of the title shall not be brought in question.” This statute only embraces one class of the cases included in the first

Section of the Act of 1848, the cases where the relation of landlord and tenant subsists, and omits cases of forcible entry and detainer. This omission to prohibit, in express terms, an inquiry into the legal title, has no doubt induced some to believe that in both classes of the cases included in the first

Section of the Act of 1848, the merits of the title may be inquired into. We have no doubt that this is an error and a misconception of the trae construction and object of the Act; that in both cases, the inquiry is confined to the right of possession, as distinguished from the title to the land. In the ease of Camley v. Stanfield, which was a case of a landlord, or lessor against his tenant or lessee, under the Act of 1848, we held that the extent to which we could go, was to allow the tenant in possession to protect his possession, by showing title in himself, not inconsistent with the title of his landlord.

The tenant had purchased the land at a sale under an execution against his landlord, and therefore acquired the landlord’s title, and occupied the position as vendee from him. In such case we regarded the landlord’s right to possession as having been merged in and followed the title. (10 Tex. R. 546.) There is nothing in the case cited, against the rule that the right of possession ■ must be the question, and not the title to the land, in an action like the present.

But, in an action for a forcible entry and detainer, the reason and the policy of the law shows most clearly, that the trial should be strictly confined to the right of possession, without regard to which party had the title to the land.

If one holding title to the land was permitted, by himself or Ms agent, with force and arms, to dispossess one in the peaceable possession, the consequence would be breaches of the peace, oppression and bloodshed ; and trial by the use of the bowie-knife and the revolver would be resorted to, instead of the quiet and peaceable remedy afforded by the due course of law in the judicial tribunals of the country. The Act of the Legislature, we have been discussing, was designed to give a

summary and peaceable remedy for the violation of every one’s possession, without stopping to inquire which party had the .title to the land. It declares to the party claiming title, Tour title may be good, the Courts of the country are open to you, to try your title and obtain possession if you have the title ; but you shall not be permitted to take the remedy in yonr hands, and by violence turn out one who has the peaceable possession ; if you do, you will be compelled to restore the possession and pnrsne the due course of the law.

It is believed that the several assignments of error can be satisfactorily answered by a reference to a misconception of the law, in supposing that the title could be enquired into, and that if it was shown that the plaintiff did not own the land, it would be a justification of the forcible entry and detainer of .the possession from Mm. The application for a change of venue was not .rested upon affidavits of a prejudice against the defendant, charged with committing the forcible entry and detainer, but upon the general prejudice against Chambers’ title.

The'existence of such prejudice may have been true, but Ms title, whether unpopular or not, had nothing at all to do with the question of the pos session, and it would not and ought not to have had any inflnence, one way or the other ; and if the plaintiff had admitted that the title was not in him, but in Chambers, it would not have, in the least degree, affected his right to recover the possession of the premises, from which he had been forcibly driven. The same may be said of the recusation of the Judge, that he claimed land embraced within Chambers’ title.

So, too, as to the assigned error in refusing to permit Chambers to intervene and set up his title. His title gave him no interest in the trial of the right of possession. It could not be impaired by the decision in the case, nor could the judgment be given in evidence on a trial of the validity of his title. He, therefore, had no interest on which to rest his claim to intervene.

The same may be said of the grounds for a new trial, It was not material if the plaintiff was mistaken in supposing that the possession was located within the Gilbert survey ; the possession was sufficiently described and identified, if it had been admitted that it was not within the limits of that survey; therefore it was not important what number of witnesses would have sworn that the locus in quo of the premises was not within the survey that the plaintiff had supposed in his petition that it was in. It could only have been important, if he had rested its identity upon that description and no other.

The appellant charges that the Court below erred in refusing his motion to attach George Davis, to compel him to attend and make an affidavit in support of his motion for a new trial. This was a most extraordinary motion : but it would have been still more extraordinary had the Court granted it. If, however, Davis had made the desired affidavit, as appellant wished he would swear, it would only have gone to the question of the boundary of the Gilbert survey, which would not have been entitled to any influence with the Court on the question of a new trial.

We find no error in the record, and the judgment is affirmed. Judgment affirmed.