Fifer v. Fifer

• Decision Date: 14 December 1903
• Citation: 99 N.W. 763,13 N.D. 20
• Court: North Dakota Supreme Court

99 N.W. 763

13 N.D. 20

GEORGE W. FIFER v. WILLIAM J. FIFER

Supreme Court of North Dakota

December 14, 1903

Appeal from District Court, Ramsey county; Cowen, J.

Action by George W. Fifer against William J. Fifer. From a judgment for plaintiff, defendant appeals.

Reversed.

Judgment vacated, and action dismissed. Appellant recovered his costs and disbursements in both courts.

Townshend & Denoyer, for appellant.

Title is a legitimate defense in an action of forcible entry and detainer in this state. Murry v. Burris et al., 6 Dak. 170, 42 N.W. 25; section 6677, Rev. Codes 1899, subdiv. 1.

As a general rule the defendant cannot plead title in himself or in third persons to defeat the right to recover on a basis of prior actual possession, except in a few states where provision is made for transferring the cause to a court competent to try title. 9 Enc. Pl. & Pr. 64.

This case must be tried and determined by this court upon the same theory pursued below. 2 Cyc., pp. 670 to 692 and cases cited; 21 Enc. Pl. & Prac. pp. 664 to 668; Davis et al. v Jacoby, 55 N.W. 908; Van v. Rouse, 94 N.Y. 401; James et al. v. Wilson et ux., 8 N.D. 186, 77 N.W 603; Marshall v. Andrews, 8 N.D. 364, 79 N.W. 851; Conner v. National Bank of Dakota, 64 N.W. 519; Moquist et al. v. Chapel, 64 N.W. 567; Power v Bowdle, 3 N.D. 107, 54 N.W. 404; Estey v. Birmbaum, 68 N.W. 290; Western Town Lot Co. v. Lane, 62 N.W. 982; Perry v. Beaupre, 50 N.W. 400; Graham v. Selbie, 74 N.W. 439; Noyes v. Brace et al., 70 N.W. 846; Baird v. Woodard, 61 N.W. 612; Aultman, Taylor Co. v. Gunderson, 60 N.W. 859.

McClory, Barnett & Adamson, for respondent, and Guy C. H. Corliss, of counsel.

The plaintiff's action was begun in justice court under section 6677, Rev. Codes 1899, and certified to the district court by such justice. Defendant by answer interposed a purely equitable defense, and upon the trial thereof objection was made by plaintiff to all evidence of the defendant in support of such defense.

The defense interposed by the appellant is not available in an action of forcible entry and detainer. Chicago, M. & St. P. Ry. Co. v. Nield, 92 N.W. 1069, 9 Enc. Pl. & Pr. 66; Torrey v. Burke, 76 N.W. 302; Ill. Cen. Ry. Co. v. Baltimore, etc., 23 Ill.App. 531; St. Louis, etc. v. Wiggins Ferry Co., 102 Ill. 514; Brown v. Haseltine, 70 N.W. 648.

Neither counterclaim nor set-off can be pleaded to an action of forcible entry and detainer. Abrams v. Watson, 59 Ala. 524; Kelly v. Teague, 63 Cal. 68; Warburton v. Doble, 38 Cal. 619; Folsom v. Clark, 72 Me. 44; Haynes v. Union Invest. Co., 35 Neb. 766, 53 N.W. 979.

In forcible entry and detainer, plaintiff, having proven possession, should be entitled to restitution though the fee simple title and present right of possession are shown to be in the defendant. McCauley v. Weller, 12 Cal. 500; Romero v. Gonzales, 3 N.M. 5; Iron Mountain & Helena R. R. Co. v. Johnson, 119 U.S. 608, 30 L.Ed. 504; Vidger v. Nolin, 10 N.D. 353, 87 N.W. 593; 13 Am. & Eng. Enc. of Law, 756; Giddings et al. v. Land & Water Co., 23 P. 196.

Defendant must restore the possession unlawfully taken, and then, in a proper action in equity, he may redeem from the alleged mortgage created by an assignment of his contract and have such assignment set aside for fraud, if he can substantiate such a claim. Dysart et al. v. Erslow, 54 P. 550; Gates v. Winslow, 1 Wis. 650.

It is well settled that in an action of forcible entry and detainer title is not involved and evidence thereof is inadmissible. Lehnan v. Dickson, 148 U.S. 71, 13 S.Ct. 481; Cunningham v. Green, 3 A. 127; Conroy v. Duane, 45 Cal. 154; Larkin v. Avery, 23 Conn. 311; Stephens v. McCloy, 36 Iowa 659; Gage v. Sanborn, 106 Mich. 269, 64 N.W. 32; Brown v. Feagins, 37 Neb. 256, 55 N.W. 1048; McDonald v. Stiles, 54 P. 487.

Evidence shows that plaintiff's possession was actual, within the scope of the forcible entry and detainer statute entitling a party having actual possession to recover the same when taken from him by stealth. Hammond et al. v. Doty, 56 N.E. 371; Wilson v. Shackelford, 41 Cal. 630; Leroux v. Murdock et al., 51 Cal. 541; Huftalin v. Misner, 70 Ill. 205; Lewis v. Yoakum, 32 S.W. 237; Seals v. Williams et al., 31 So. 707; Giddings et al. v. Land & Water Co. et al., 23 P. 196; DeGraw v. Prior, 53 Mo. 313; Johnson v. Huffman, 53 Mo. 504; Powell v. Davis, 54 Mo. 315, 13 Am. & Eng. Enc. of Law, 746.

OPINION

YOUNG, C. J.

The parties to this action are brothers. The action affects the right of possession and title of 320 acres of land situated in Ramsey county. The defendant purchased the land on the 24th day of June, 1899, from one Lemuel Berry, upon contract, and entered into possession thereunder, and continued in such possession until the spring of 1901, when plaintiff went into possession. On June 6, 1901, the defendant executed an assignment of his contract to the plaintiff. On the 24th day of February, 1902, thereafter, the defendant, claiming that the assignment to plaintiff was for security only, and that it was no longer in force, returned into possession; whereupon plaintiff instituted this action. The case was tried to the court without a jury. The findings of the trial court were in all respects favorable to the plaintiff, and judgment was entered in his favor, awarding to him the possession of the premises. The defendant appeals from the judgment, and demands a trial de novo of the entire case, under section 5630, Rev. Codes 1899.

It is urged in this court by counsel for defendant, as it was in the trial court, that the assignment of the contract to the plaintiff was merely for the purpose of security and in trust, and, further, that the assignment was procured by plaintiff through fraud, and should therefore be canceled. Counsel for plaintiff, on the other hand, contend that the assignment was absolute. They also strenuously contend that this action is one in forcible entry and detainer, and as such involves only the question of possession, and that the judgment of the district court must be affirmed by this court without reinvestigating the question of title and right of possession. It is urged that the inquiry in a forcible entry and detainer action is confined to the actual peaceable possession of the plaintiff and the unlawful or forcible ouster or detention by the defendant, the object of the law being to prevent the disturbance of the public peace by the forcible assertion of private rights, and that questions of title or right of possession cannot arise; that a forcible entry upon the actual peaceable possession of the plaintiff being proved, he is entitled to restitution, even though the present right of possession be in fact in the defendant. That this is a correct statement of the issues properly arising in a forcible entry and detainer action as that action generally exists is, without doubt, true. In this respect it differs from the action of ejectment. The distinction between an action of ejectment and one of forcible entry and detainer is well stated in Sedgwick & Wait on Trial of Title to Land, section 94, as follows: "The title or right of possession is always involved in the trial of an action of ejectment. The party who seeks to change the possession by ejectment must first establish a legal title to it, but the remedy for the forcible or unlawful entry is designed to protect the actual possession, whether rightful or wrongful, against unlawful invasion, and to afford summary redress and restitution. The forcible entry, even of the owner himself, and still more the entry of another person, whether forcible or not, is unlawful. The title cannot be drawn in question in forcible entry proceedings, which are frequently conducted in tribunals having no jurisdiction to determine titles to real property. In the one case the question of the unlawful invasion of an actual possession only is involved; in the other the absolute right of possession is to be tried and determined."

It is contended, on the other hand, by counsel for the appellant that under our forcible entry and detainer statute, which, in its phraseology, is different from any with which we are familiar, title may be placed in issue and litigated. Section 6677, Rev. Codes 1899, which is a part of the Justices' Code, provides that: "This action is maintainable, (1) when a party has by force, intimation, fraud or stealth entered upon the prior, actual possession of real property of another and detains the same." The Iowa forcible entry and detainer statute, from which that portion of our statute, just quoted, was taken, authorizes the remedy when the entry is upon "the prior, actual possession of another in real property;" that is, when the entry is upon another's possession, regardless of the ownership. Our statute makes the remedy available when the entry is "upon the prior, actual possession of real property of another." The difference in the phraseology of the two statutes constrained the territorial Supreme Court in Murry v. Burris, 6 Dak. 170, 42 N.W. 25, to hold that the action could not be sustained against one who enters upon the possession of his own real property, and that it is always permissible for the owner to show that the property upon which he entered was his own for the purpose of defeating the action, and that to this extent, under our statutory action of forcible entry and detainer, title may be litigated. Justice Tripp, speaking for the court in that case, said: "The material change, as will be observed, consists in placing the words 'of another' after the words 'real property' in our statute, instead of after the words 'actual possession,' as in the Iowa statute, whereby the meaning of the sentence is made to be (if the pronoun 'another' is made to qualify as its...