Taylor v. Orlansky

• Decision Date: 06 April 1908
• Citation: 46 So. 50,92 Miss. 761
• Court: Mississippi Supreme Court
• Parties: JASPER M. TAYLOR v. HIRAM ORLANSKY

46 So. 50

92 Miss. 761

JASPER M. TAYLOR v. HIRAM ORLANSKY

Supreme Court of Mississippi

April 6, 1908

March 1908

FROM the circuit court of Sunflower county, HON. SYDNEY M. SMITH Judge.

Orlansky appellee, was plaintiff in the court below, and Taylor appellant, defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court.

Orlansky, plaintiff, sued Taylor, defendant, in an action of unlawful detainer for a part of a storehouse. Plaintiff based his right to possession on a contract in writing signed by himself and defendant by the terms of which defendant agreed that within a reasonable time he would complete the unfinished building, and would then rent it to plaintiff. Plaintiff was never in possession of the building. The facts are further stated in the opinion of the court.

Code 1906, § 5039, referred to in the opinion, is as follows:

"Unlawful Entry and Detainer; In what Cases a Remedy.--Any one deprived of the possession of land by force, intimidation, fraud, stratagem, stealth, and any landlord, vendor, vendee, mortgagee, or trustee, or cestui que trust, or other person against whom the possession of land is withheld, by his tenant, vendee, vendor, mortgagor, grantor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtained possession, or withholds possession after the expiration of his right, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or withholding of possession, be entitled to the summary remedy herein prescribed."

Reversed.

Frank E. Everett, for appellant.

Forcible entry and detainer will not lie where the lessee has never had possession of the premises. McCorkle v. Yarrell, 55 Miss. 576; Owen v. Alliance, 77 Miss. 500, 27 So. 383.

Before the plaintiff could legally maintain his action he must have had possession of the premises and must have then been deprived in some of the ways enumerated in the statute. Owen v. Alliance, supra. The statute requires that a plaintiff instituting proceedings under it must, at the time of the alleged unlawful entry, be in actual possession and occupation of the premises. Code 1906, § 5039. Parker v. Eason, 68 Miss. 290, 8 So. 844; Young v. Barr, 69 Miss. 879, 13 So. 816; Sproule v. A. & V. Railroad Co., 78 Miss. 88, 29 So. 163; Blake v. McRay, 65 Miss. 443, 4 So. 339; Foster v. Kelly, 84 Am. Dec., 676; Wray v. Taylor, 56 Ala. 188; DeGraw v. Prior, 60 Mo. 56; Laird v. Waterford, 50 Cal. 315; Newton v. Doyle, 38 Mich. 645; Edwards v. Carey, 60 Mo. 572; Castro v. Trucksberry, 69 Cal. 562; Childress v. Blake, 17 Tenn. 317; Botts v. Magness, 17 Col. 364; Paden v. Gibbs, 88 Miss. 274, 40 So. 871. And see generally the dissenting opinion of WHITFIELD, J., in Glenn v. Caldwell, 74 Miss. on p. 53, s. c., 20 South, 152.

Johnson & Neil, for appellee.

Our statute law in regard to unlawful entry and detainer is much broader in scope than the common law on the subject. It now provides for the acquiring of possession by those entitled to such possession, under a contract, and who are held out of possession in violation of the contract's terms. And where the right of possession has arisen by reason of a contract between the parties, a previous occupation is not a prerequisite to the institution of the action under the statute. Spears v. McKay, Walker (Miss.), 265; Cummings v. Kilpatrick, 23 Miss. 121.

In the case of Glenn v. Caldwell, 74 Miss. 49, 20 So. 152, the statute was held to apply to a purchaser under execution sale; and, though that case was earnestly litigated, it was never suggested, as a reason that Glenn could not maintain the action, that he had never been in possession of the land.

It is true that the word "lessee" does not appear in the statute, but a lessee is a "person against whom the possession of land is withheld by . . . other person, after expiration of his right by contract to hold possession." The term "grantor" in the statute is broad enough to include a lessor of a building. Russell v. Watt, 41 Miss. 609; 20 Cyc., 1362.

WHITFIELD, C. J. CALHOON and MAYES, JJ., especially concurring.

OPINION

WHITFIELD, C. J.

Taylor leased to Orlansky from the time of its completion the east room of a brick building in the town of Ruleville, Sunflower county, Miss. The lease was in writing, duly executed and signed in duplicate. The building was completed, and Taylor refused to deliver to the lessee the said east room according to his contract, but offered him in lieu thereof fifteen or twenty feet off of the front side of said east room. Orlansky brought an action of unlawful detainer under the statute to recover the possession of the room as was claimed.

The only ground which we will consider is that set out by the defendant, Taylor, that this form of action cannot be maintained in this case, because the lessee never had been in possession of the building himself, never had been deprived of the possession of the building in the language of the statute, nor had any one under whom he claimed been in possession. We think this defense is manifestly sound, and that this action cannot be maintained. See authorities cited in the brief of the learned counsel for appellant. Especially see Sproule v. A. & V. Ry. Co., 78 Miss. 88, 29 So. 163, and Blake & Boulden v. McCray, 65 Miss. 443, 4 So. 339; and, generally, on the right to bring this action, the dissenting opinion in the case of Glenn v. Caldwell, 74 Miss. 49, 20 So. 152. We do not deem it necessary, in view of these authorities, to extend our observations.

The judgment is reversed, and the suit dismissed.

Reversed.

CONCUR BY: CALHOON; MAYES

CALHOON and MAYES, JJ., especially concurring:

While subscribing to the conclusion reached in the case, still, in order to exclude any possible erroneous deduction we announce that we concur in the majority opinion of the court in Glenn v. Caldwell, 74 Miss. 49, 20 So. 152. That case, we think, was properly decided on its construction of the statute.

SUPPLEMENTAL PROCEEDINGS.

After the delivery of the opinions the counsel for the appellee filed an elaborate suggestion of error.

WHITFIELD, C. J., delivered the opinion of the court in response to the suggestion of error.

The trouble with the learned counsel filing the suggestion of error in this cause is that they carelessly read the opinion of the court and completely misconceived it. We said in that opinion that plaintiff could not maintain the action of unlawful detainer on the facts of the case, since he had never been deprived of the possession of the building, nor had any one under whom he claimed been in possession. This last clause of the opinion counsel seem entirely to have ignored in their suggestion of error, and yet it is the vital thing in the opinion.

The contention of counsel is simply that any one who has a right of possession by contract to a piece of land is entitled to bring this action of unlawful detainer under our statute. This is a manifest misconception. Counsel puts this illustration: "Suppose A., holding the legal title to a tract of land, makes a lease of the same to B. for ten years C. at the time being in actual adverse possession of the land. B., having the right of possession, brings his action of ejectment against C., and obtains possession of the property. Does this court hold that, at the expiration of...