Horan v. Thomas
| Decision Date | 20 April 1888 |
| Citation | 13 A. 567,60 Vt. 325 |
| Parties | WILLIAM HORAN v. WILLIAM THOMAS AND ANOTHER |
| Court | Vermont Supreme Court |
JANUARY TERM, 1888
ACTION brought under section 1321, Rev. Laws, to recover possession of a house, barn and two acres of land in Bridgeport. The action was commenced before a justice of the peace, and an appeal was taken by the defendants to the County Court. Plea, general issue. Trial by court, June Term, 1887, ROWELL, J., presiding. Judgment for the plaintiff for the possession of the premises and for $ 53.82 damages, which was the amount of rent of said premises for the whole time of defendants' occupancy after deducting $ 4 paid.
The judgment is affirmed.
Tupper & Bliss, for the defendant.
It matters little what name we give to the remedy given by section 1321, R. L., for the recovery of the possession of leased lands held "without right" by a lessee. Some courts call it one thing, some another. But "What's in a name? that which we call a rose, By any other name would smell as sweet."
This statute gives a summary remedy to persons entitled to the possession which is wrongfully withheld, and was intended as a substitute for the technical procedure of the common law action of ejectment. If the lessee or any one holding under the lease withholds the possession "without right" after the expiration of the lease, or after a breach of its stipulations, he is amenable to this action.
The stipulation in this lease was that the defendant Howard should pay his monthly rent in advance. At the beginning of the month he had no "right" whatever under the lease until he paid the rent. There were then successive breaches of the stipulations of the lease, for any one of which the plaintiff had this remedy.
No questions respecting the plaintiff's title, demand of rent in arrear, or notice to quit, are involved in this proceeding. If the plaintiff is entitled to the possession, whether as the titleholder or otherwise, he is qualified to sue. If the defendant is not entitled to the possession, or, as the statute puts it, holds it without right, he is liable to be sued. The form of the declaration is presented in section 1322; and it is clear that the legislature in this proceeding intended to avoid both the delays and the technicalities of the old action of ejectment, otherwise there would seem to be little gained by the enactment.
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