Jensen v. Nolte

• Citation: 10 N.W.2d 47,233 Iowa 636
• Decision Date: 14 June 1943
• Docket Number: 46227.
• Parties: JENSEN v. NOLTE et al.
• Court: Iowa Supreme Court

10 N.W.2d 47

233 Iowa 636

JENSEN v. NOLTE et al.

No. 46227.

Supreme Court of Iowa

June 14, 1943

R. Eldon Laird, of Waverly, for appellant.

Sweet & Sager, of Waverly, for appellees.

MULRONEY Justice.

Plaintiff's petition, filed March 7, 1941, alleged that he was the holder of a written lease covering a farm owned by defendant Nolte the lease was for one year commencing March 1, 1941, executed by Nolte on July 10, 1940; defendant Lageschulte was in possession of the farm with the consent and approval of Nolte. Plaintiff asked judgment for possession and damages or judgment for the reasonable rental value of the property during the period of the lease.

Defendants filed separate demurrers chiefly on the ground that the petition shows plaintiff does not have legal title to the real estate, and the action can only be maintained by the owner who is entitled to immediate possession. The trial court sustained the demurrer filed by Lageschulte (herein referred to as defendant and appellee) and entered judgment against plaintiff after he elected to stand on his petition.

The sole question presented by the demurrer is whether this action brought under chapter 517, Code of 1939, can be maintained by one who has the right to possession, but does not have the legal title to the real estate.

An action for the recovery of real property can be brought under the provisions of chapter 517, Code of 1939. The action shall be by "ordinary proceedings." Section 12230. It can be brought by "any person having a valid subsisting interest in real property, and a right to the immediate possession thereof *** against any person acting as owner landlord, or tenant of the property claimed." Section 12231. "The plaintiff must recover on the strength of his own title." Section 12232. "The petition may state generally that the plaintiff is entitled to the possession of the premises, particularly describing them, also the quantity of his estate and the extent of his interest therein, and that the defendant unlawfully keeps him out of possession ***." Section 12235. "The plaintiff shall attach to his petition *** if he claims title, an abstract of the title relied on ***." Section 12236. "If the interest of the plaintiff expires before the time in which he could be put in possession, he can obtain a judgment for damages only." Section 12247. Similar enactments appeared in the codes of 1897 (Chapter 2, Title 21), 1873 (Chapter 2, Title XX), and 1851 (Chapter 116).

We have said that the actions provided for in the foregoing statutory provisions "are those commonly known as 'actions of right' or 'ejectment."' Hinman v. Sage, 213 Iowa 1320, 241 N.W. 406, 407. It is apparent that the principles involved in the common law action of ejectment have been retained. At common law the purpose of the ejectment action was to determine the legal right to the possession of realty and to enforce that right. The issue as to the right to possession might rest on the question of title, but the subject matter of the action was not the title. It was always the right to possession which might in some cases be established by proof of title. The rule is stated in 18 Am.Jur. 21, par. 20: "Although the action may, and frequently does, become the means of trying title, it is essentially a possessory action and is ordinarily confined to cases where the claimant has the possessory title-that is, a right of entry upon the lands." The common law action of ejectment could be maintained by the lessee. See 28 C.J.S., Ejectment, p. 859, § 12, where it is stated: "Ejectment lies for the recovery of a term ***." Also 18 Am.Jur. 63, par. 68 where it is stated: "In a proper case an action of ejectment may be brought *** by a lessee to recover possession in his own behalf ***." See, also, note L.R.A.1918A, 55.

In Olive v Daugherty, 2 G. Greene 393, this court held "the above section (Rev.Stat. 529, now section 12247) appears to have been framed with a particular reference to cases like the present. It obviously assumes that a recovery may be had upon a mere lease or demise ***." Again in Adair v. Bogle, 20 Iowa 238, where the lessee sued the lessor for damages for refusal of the latter to let him into possession it is stated: "The tenant is not, in such case, confined to an action of ejectment against the landlord."

We think the provisions of chapter 517, when fairly read, make an action for possession of real estate available to a lessee who is entitled to, but not in, possession. Surely such a person has "a valid subsisting interest" in the real estate. A lease of real estate is a conveyance by the owner of a portion of the owner's interest therein to the lessee. It creates in the lessee an interest in the real estate. State Savings & Loan Ass'n v. Bryant, 159 Or. 601, 81 P.2d 116; Moeller v. Gormley, 44 Wash. 465, 87 P. 507; Showalter v. Lowndes, 56 W.Va. 462, 49 S.E. 448, 3 Ann.Cas. 1096; Brenner v. Spiegle, 116 Ohio St. 631, 157 N.E. 491.

That ownership of the legal title is not a necessary allegation in the petition appears from the requirement of section 12235 that plaintiff state "the quantity of his estate and the extent of his interest therein ***." This is not a requirement that plaintiff allege he is the holder of the legal title. The natural construction of such words contemplates an allegation of some interest less than the full legal title. It would seem, as...