Wynn v. Vessey

• Decision Date: 15 December 1923
• Docket Number: 18085.
• Citation: 221 P. 295,127 Wash. 492
• Parties: WYNN v. VESSEY.
• Court: Washington Supreme Court

221 P. 295

127 Wash. 492

WYNN v. VESSEY.

No. 18085.

Supreme Court of Washington

December 15, 1923

Department 1.

Appeal from Superior Court, Benton County; Truax, Judge.

Action by C. Wynn against Mary E. Vessey. From a judgment nonsuiting the plaintiff, he appeals. Affirmed.

Wm. L Waters, of Grandview, for appellant.

Henry H. Wende, of Yakima, for respondent.

HOLCOMB J.

This appeal is from a nonsuit in a forcible detainer case.

The action was brought under Rem. Comp. Stat. § 811, which provides:

'Every person is guilty of a forcible detainer who either, * * * in the nighttime, or during the absence of the occupant of any real property (unlawfully) enters thereon and who, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant. The occupant of real property within the meaning of this subdivision is one who, for the five days next preceding such unlawful entry, was in the peaceable and undisturbed possession of such real property.'

The action was brought upon the theory that, even though appellant was not the legal tenant, if he had peaceable and undisturbed possession of the real property of respondent for five days next preceding the unlawful entry by respondent, he was entitled to dispossess her in this form of action, and that furthermore he was accepted as a tenant by respondent.

Appellant insists that the title or the right of tenancy was not in litigation in this case, but only the right of possession at the time of the dispossession, and relies upon the cases of Gore v. Altice, 33 Wash. 335, 74 P. 556, and Ridpath v. Denee, 85 Wash. 322, 148 P. 15.

The facts presented by appellant as plaintiff in the court below to the court and jury were in substance as follows: One Sherwood had been in possession of the premises from February 21, 1920, under an assignment of a lease by one Keylon from respondent. Sherwood farmed the premises under the provisions of the lease until the latter part of June, 1922, when he desired to abandon the premises. The lease provided that it should not be assigned or sublet without the written consent of respondent, the lessor. Appellant had a mortgage upon the undivided one-half interest in all crops of every nature, and the pasture grown during the year 1922, upon the leased premises. The lease also provided that the title to the crops should remain in the lessor (respondent) until delivered to the nearest shipping point. There was evidence that Sherwood attempted to deliver possession of the crops to appellant on June 20, 1922, but that he continued to work on the place until the 23d or 24th of June, taking care of the irrigation of the crops, keeping part of his household goods, his milch cow, and a number of fowls on the place. All the possession as shown by the evidence, that was ever taken by appellant was attempted possession of the crops, and even that was not undivided possession, for the lessee was still working upon the crops until June 23d. Appellant never had complete possession of the place, but remained at his own home in Grandview, some miles distant, and went out to the place each day to see after the irrigating. That work he commenced to do himself, as...