Bagley v. Sternberg

Vanderburgh, J.

Under Gen. St. 1878, c. 84, § 11, proceedings as for an unlawful and forcible detainer may be instituted by a landlord against his tenant wrongfully holding over, and also against the person holding possession of the demised premises under such tenant. Judd v. Arnold, 31 Minn. 430 .

The question here presented is whether an under-tenant who is in possession under a lease from the tenant can be lawfully dispossessed in such proceedings against the tenant, where the under-tenant is not made a party. We think this question must be answered in the negative. The statute contemplates that the proceedings should be taken against the under-tenant in such cases. The practice should be the same as in ordinary cases of unlawful and forcible detainer, and the complaint and writ of restitution should run against the persons in possession, actually detaining the premises. Leindecker v. Waldron, 52 Ill. 283 . The action may also proceed jointly against the original tenant and any and all under-tenants, the object being to put the landlord in complete possession in one proceeding. Judd v. Arnold, supra; Emerick v. Tavener, 9 Grat. 220. The proceedings are summary, and persons holding jointly with or under the tenant may have cause to show against them,, though the original tenant fails to interpose any defence. Such persons should therefore be made parties. Wiggin v. Woodruff, 16 Barb. 474 ; Hill v. Stocking, *472 6 Hill, 314 ; Croft v. King, 8 Daly, 265 ; Clark v. Barker, 44 Ill. 349 ; Orrick v. St. Louis, 32 Mo. 315 ; Freeman on Executions, § 475.

The occupation or possession of the family, servants, or agents of fhe tenant will, of course, be construed to be the possession of the tenant, — Davis v. Woodward, 19 Minn. 137 , (174;) — and the action of the landlord should not be defeated by any mere colorable or collusive change of possession, or an entry of a subtenant, pendente lite.

In the action of ejectment at common law, it was held sufficient to serve notice to quit upon the original tenant. There is no privity between the landlord and an under-tenant, and the former was entitled to proceed against the tenant for the restoration of the premises, and recover costs against him. Emerick v. Tavener, supra; Adams on Ejectment, *130; Roe v. Wiggs, 2 Bos. & Pul. (New Rep.) 330. But under that practice the suit was in form against the casual ejector, and the declaration (in Doe v. Roe) was required to be served as well upon the under-tenant as the tenant. Doe v. Cock, 4 Barn. & C. 259; Adams on Ejectment, *235, margin; Id., Forms, *351, *352. And, under recent statutes doing away with the old forms in ejectment, the action is generally required to be brought against the person in the actual possession of the premises. 3 Wait, Act. & Def. 81. We think, therefore, that the plaintiff was not, in so far as the facts admitted on the face of the pleadings show, concluded by the proceeding in forcible entry set forth in the answer.

2. The plaintiff seeks to recover treble damages under Gen. St. 1878, c. 75, § 50. The defendants contend that the action must fail because the allegations in the complaint are insufficient to warrant a recovery under that section; but, in any event, we think the plaintiff is not limited to an action for treble damages, but may recover in an ordinary action of trespass if the facts warrant; and for this, at least, the complaint is sufficient.

Judgment reversed, and cause remanded for further proceedings.