Adams v. Holcomb

• Decision Date: 12 March 1948
• Docket Number: 28420.
• Citation: 77 N.E.2d 891,226 Ind. 67
• Parties: ADAMS v. HOLCOMB et al.
• Court: Indiana Supreme Court

77 N.E.2d 891

226 Ind. 67

ADAMS v. HOLCOMB et al.

No. 28420.

Supreme Court of Indiana

March 12, 1948

Appeal from Marion Municipal Court; Thomas F. Quinn, Judge.

Owen S. Boling, of Indianapolis, for appellant.

Wilfred Seyfried and L. Russell Newgent, both of Indianapolis, for appellees.

STARR, Judge.

The appellees brought this action in the Marion County Municipal Court to recover the possession of a dwelling house and damages for the unlawful detention thereof. From a judgment awarding possession and damages to the appellees, this appeal is taken.

Omitting the formal allegations, the complaint is in words and figures as follows:

'1. That the plaintiffs herein are the purchasers on a conditional sales contract of certain property located in Marion County known and designated as Lot Number 4 in Christian Neerman's subdivision of Lots 63 and 67 in S K. Fletcher's First Brookside Addition to the City of Indianapolis, generally known as 2835 E. 19th Street Indianapolis, Marion County, Indiana; that as such purchasers they are entitled to the possession of such real estate.

'2. That the defendant now holds possession of said real estate without right or color of title, and since May 13th, 1946 have unlawfully kept these plaintiffs out of possession thereof; that notice and demand for possession have been made upon said defendant and that said defendant has refused possession of said property to these plaintiffs.

'3. That all Federal laws applicable hereto have been complied with.

'Wherefore plaintiffs demand judgment for possession of said real estate, for damages, for attorney fee and for any other fitting and proper relief in the premises.'

To this complaint the appellant addressed a motion to make more specific in that the appellees be required to state the facts necessary to sustain the following conclusion (a) 'that as such purchasers they are entitled to such possession of the real estate'; (b) by stating in what manner notice and demand for possession have been made upon the appellant; and (c) 'By stating the facts necessary to sustain the conclusion 'that all Federal Laws applicable hereto have been complied with.'' This motion was overruled by the trial court. Thereupon, the appellant filed his demurrer to this complaint upon the following grounds: First, that the complaint does not state facts sufficient to constitute a cause of action; Secondly, that the court did not have jurisdiction of the subject matter of the action. Attached to this demurrer was a memorandum setting forth certain grounds why the facts were not sufficient; also, that said trial court had no jurisdiction in actions involving the title to real estate. This demurrer was overruled.

The appellant has assigned as errors the overruling of the motion to make more specific, overruling of the demurrer to the complaint, and overruling of the motion for a new trial. We will first consider the action of the court in overruling appellant's demurrer based on lack of jurisdiction of the subject matter.

In considering the allegations of this complaint we are forced to disregard all conclusion of fact contained therein complained of in appellant's motion to make the complaint more specific, which motion should have been sustained. The appellees' act in opposing and procuring the court to overrule this motion must be deemed an admission that no facts were relied upon except those expressly averred. Enterprise, etc., Pub. Co. v. Craig, 1924, 195 Ind. 302, 144 N.E. 542; Neal v. Baker, 1926, 198 Ind. 393, 153 N.E. 768.

The question, therefore, is whether or not the complaint, stripped of all its conclusions of fact, shows on its face that the trial court had no jurisdiction of the subject matter of the action. It is appellant's contention that this complaint, if anything, is a complaint in ejectment as authorized by § 3-1301, Burns' 1933, 1946 Real., and being a complaint in ejectment the trial court had no jurisdiction.

The Municipal Court of Marion County is a court of limited jurisdiction and has only such powers as the statute of its creation confers. Its jurisdiction is granted by § 4.2502, Burns' 1933, 1946 Repl. This section, among other things, provides that said court shall have '* * * jurisdiction, irrespective of the value of the property sought to be recovered in possessory actions between landlord and tenant. Such court shall have no jurisdiction in actions involving the title to * * * real estate * * *.'

It is our opinion that the complaint herein is a defective complaint in ejectment, but it does not follow that this complaint shows on its face that the trial court did not have jurisdiction. As we have heretofore noted the Municipal Court of Marion County has jurisdiction 'in possessory actions between landlord and tenant.' Ejectment is a possessory action. 28 C.J.S., Ejectment, §§ 1, 2 and 3 et seq.

In speaking of ejectment this Court has said: 'It is often necessary for the plaintiff to show a right of property in order to establish a right of possession. In some instances he must show an estate in fee; in others a less estate is sufficient. But it is in all cases indispensible, that the plaintiff show a clear legal right of possession in his lessor. * * * Whatever kind of title the plaintiff may show, or from whatever source it may be derived, the right of possession is the object to which the eye of the law is uniformly directed; and to that object the evidence should always apply. Ejectment is a possessory action. The subject of controversy is not the ultimate title to the land itself, but the legal right of possession.' Doe v. West, 1820, 1 Blackf. 133, 134.

Ejectment is a proper remedy to be used by a landlord to recover possession of the leased premises from his tenant after the expiration of the term, or for nonpayment of rent, or for forfeiture of the lease by breach of the condition thereof when it is stipulated in the lease or provided by law that the lessor shall have the right to re-enter for such nonpayment of rent or breach of condition. 18 Am.Jur., Ejectment, § 48; Michaels v. Fishel, 1902, 169 N.Y. 381, 62 N.E. 425; St. Germain v. Sears, Roebuck & Co., 1942, 112 Ind.App. 412, 44 N.E.2d 216.

It is true that in ejectment the plaintiff must recover on the strength of his own title, and this court on many occasions has said that in ejectment title is in issue. See Blake v. Minkner, 1893, 136 Ind. 418, 36 N.E. 246. But where the action is brought by a landlord against his tenant merely to recover possession of the real estate the tenant is estopped while continuing in possession, to dispute the title of his landlord, and the landlord is entitled to recover without further proof of his title than the fact that the defendant is his tenant in possession as such. Warvelle on Ejectment § 236. Of course this rule as to estoppel does not apply when the purpose of the suit is to establish title, or where the decree sought would not only give possession of the land but by estoppel settle the title to it. Tuell v. Homann, 1915, 60 Ind.App. 285, 108 N.E. 596. See 89 A.L.R. 1295 note.

It is the law that where an...