Beeler v. Cardwell

Ewing, Judge,

delivered the opinion of the court.

From the facts proved in this case, it is obvious that a question foreign to the issue involved was submitted to the jury in the instruction given by the court. The jury were instructed that if the plaintiff rented the field in controversy to George Beeler for the term of two years, and that the said George assigned his lease to the defendants, or some of them, without the consent in writing of the plaintiff, then, before the plaintiff can lawfully take possession thereof, he must terminate the lease by giving ten days’ notice to quit possession, and the plaintiff having failed to show that he gave notice as above, they will find a verdict for the defendants.

The evidence shows that the land in controversy was leased by appellant for two years to George. Beeler and Dow Card-well, the latter of whom, after the first crop.was made, sold his interest to his cotenant Beeler, who sold the crop to Dover. Dover sold the stock field to appellant, the landlord, who took possession and kept his stock therein until about the first of March, and while at the work on the premises was forcibly ejected therefrom by the respondents. It was also proved that the premises in question, sometime during the latter part of the year 1858, were sublet to the respondents, or rather the lease was assigned to them by Beeler, to which it does not appear the landlord assented.

B As the case is presented to us by the record, the only q tion for the consideration of the jury was whether the *74 lant, plaintiff below, was in peaceable possession of the field and was ousted by force; if so, he was entitled to recover without reference to the question submitted to the jury in the instructions of the court. Whether there was an assignment of the lease or not to respondents was immaterial. That would be important, as well as the question of notice, in an action by the landlord against the assignee of the lease to recover possession upon the ground of an assignment or transfer of the tenant’s term or interest without the landlord’s assent. (E. C. 1855, p. 1012, § 10, 11.) It is conceded that in such case the landlord could only regain the possession by a peaceable re-entry, or by suit after ten days’ notice to the subtenant, or under-tenant, to quit.

In an action of forcible entry and detainer, the right of entry or of possession are questions not involved in the issue to be tried. It is evident that the statute on this subject means to compel restitution of the possession to the party forcibly ousted without any reference whatever to such questions. It declares that no person shall enter upon or into any lands, tenements or other possessions, and detain and hold the same, but when entry is given by law, and then only in a peaceable manner. The sixteenth section of the act, which says that the plaintiff may sustain the issue by proof that he was lawfully possessed of the premises, and that the defendant unlawfully entered, has received a construction which harmonizes with the tenor of the act, and the only one that would make effective the remedy it gives. (Krevet v. Meyer, 24 Mo. 110 .) In that case the word lawfully was interpreted to mean nothing more than peaceably. The instruction given was erroneous, and the judgment will be reversed and the cause remanded;

the other judges concurring.