46 CASES IN THE SUPREME COURT [27 Ark. Smith v. Lafferry. . [DECEMBER SMITH v. LAFFERRY. FORCIBLE ENTRY AND DETAINER — Actions of, distinct.—The Actions of Forcible Entry and Forcible Detainer, as provided far in our system of practice, are separate and distinct actions. FORCIBLE ENTRY—What necesscvry to show.—In an action of forcible entry it is necessary to show that the defendant did actually enter into the lands or tenements of the plaintiff, without the consent of the,person having the possession in fact of the premises. FORCIBLE DE-rAINER—What must appear.—In an action of forcible de-tainer it must appear on the face of the warrant, in some way, that the relation of landlord and tenant exists, or existea between the plaintiff and defendant, said to have been in possession, at the time of the entry. ACTIONS OE—Cannot be joined.—The actions of forcible entry and forcible detainer cannot be joined so that a warrant for forcible entry can be the foundation for a verdia of forcible detainer; in the one, force is the gist of the action; the other is founded on a. breach of contract. APPEAL FROM JOHNSON CIRCUIT couRT. Hon. WILLIAM N. MAY, Circuit Judge. Clark & Williams and Floyd & Cravens, for Appellant. English, Gantt. & English, for Appellee. BENNETT, J.--This is an action of forcible entry, instituted, by the • appellee against the appellant, before a Justice of the Peace of Johnson county, to recover the possession of certain lands. A verdict of not guilty was rendered. Appellee filed traverse and . appealed to the Circuit Court ; judgment for the appellee—motion for a new trial, which was overruled, and appellant appealed to thi4 court. The motion for a new trial contained six different causes for setting the verdict aside : First, Because the verdict is not sustained by sufficient evidence. • Second, Because the verdict is contrary to law. Third, Because the court erred in giving the instructions Jo 'the jury, asked by the plaintiffs, against the objection of the defendant. ■
27 Ark.] OF THE STATE OF ARKANSAS. 47 TERM, 1871.] Smith v. Lafferry. Fourth,. Because the court erred in refusing to give the first and third instructions asked by the defendant. - Fifth, Because the court erred in giving the first and third instructions asked for by the defendant, as altered by, and modified by the court. Sixth, Because the court erred in refusing to give to the jury the fourth instruction asked by the defendant. For the purpose of disposing of the case, as far as this court is concerned, we have only to consider the first two reasons assigned for a new trial, viz : That the verdict is not sustained by evidence, and is contrary to law. • Forcible entry is defined by the 'Code of Practice to be, "An entry into lands or tenements without the consent of the person having the possession, in fact, of the premises." It is well known that the practice act, from which the above definition is taken, is; in the main, but a copy of the Kentucky Code. Adjudications, therefore, , had in that State, since its adoption, as to its construction, are entitled to great weight. In the case of Hunt vs. Wilson, 14 Ben. Monroe, 46, it was held that "The only legitimate inquiry upon a warrant for a forcible entry by the defendant, upon the lands occupied by the plaintiffs, is, whether the defendant entered upon the land which, at the time of such entry, was in the actual possession of the plaintiff§t." It is true, this decision was rendered under the statute of Kentucky passed in 1810: The 17th section of which 'reads as follows : "The forcible entry intended by this, is, and shall be, an entry with or without multittide of people, against the will, or without the assent of the person or persons who, at the time of such entry, have the possession, in fact, of the .premises, into which such entry may be made." But in the case of Belcher vs. Ben . nett, 4 Met., 308, it was held, "that .the provisions • of the Code, regulating proceedings in cases' of forcible entry and detainer, • are a substantial enactment of the Act of 1810." Therefore, the deUision in the case st
• 48 CASES IN THE SUPREME COURT [27 Ark. Smith v. Lafferry. • [DEcrartiP':E of Hunt vs. Wilson, has as much weight as though rendered since the adoption of the Code. 'The actions of forcil:)le entry and forcible detainer, as provided .fOr in our system of practice, are separate and distinct. On forcible .entry, it is necessary tO show that the defendant did adually entei into the lands or tenements of the plaintiff, without the consent of the person having the possession, in fact of the premises. • • In Fowler vs. Knight, 10 Ark., 43, it was held, that, c`to • maintain the action of forcible entry and detainer, the plaintiff 'is not bound to show that he was in actual possession of the premises when the defendant entered." But in a later case, McGuire vs. Cook, 13 Ark., 448, the court says, •"upon the faCts in the case of Fowler vs. Knight, which was forcible entry and 'detainer, the decision was doubtless correct; but so far aS it may be inferred from the opinion in that case, that this action may be maintained upon a constructive possession i. e., that the title draWs to it the possession as of personalty, or that where the entry is peaceable, if made without color of title, the law will imply force, or that . the plaintiff may recover by shoWing his right to, the possession, without showing that he had the possession, and lost it by means of the defendant's entry, 'or that by making the affidavit and giving the bond. - required, this summary proceeding may become a substitute for the action of ejectment, the court * declares that such is not the law." Wh ile these' decisicins were made under the old statute, we must hold that the principles are the correct ones. In forcible detainer it 'mist appear, on the face of the war-.rant in some way, that the relation of landlord and tenant exists, or existed between the plaintiff and defendant, said to have been in possession, .at the time of the entry. •Tried) by these criterions how stands the case at bar ? . Conceding the fact that the defendant below, the appellant -here, was in actual possession of the tract of land, as Stated in the warrant, which by no means fhas been conclnsively 'proven.
27 Ark.] OF THE STATE OF 'ARKANSAS. 49 TERM, 137.1.] . Smith v. Lafferry. and Conceding' further, that 'the parol contract of rent, . alleged to haVe been made for two years, Was null and void as to the year 1870,...rthe . last', of the two years,' by reason of its being in derogation of the statute ; of frauds, ,still the plaintiff below, the appellee -here, has failed to sustain his action. Was he, Lafferry, in actwa possession, or had he the posses-slon lw fact, at the time o . f the a . lleged forcible entry of the defendant, Smith, viz : on the 14th day of December, 1869, or as the time would have been alleged by the amended warrant, 'January 1st, 1870. . , This question of 'possession is the parainount one, yet the tes- • thnony does not disclose this fatt, , but, on the contrary, clearly shows that ,Smith, the appellant, for . the year 1869, was .the tenant of Lafferry and, by virtue of a contract for rent, did enter upon and take po'ssession of the old field on the 4 . of and the swi of . the nei of section 24, , township 8 north, range 24 west, and held the same for that year. This is sworn to by the plaintiff, Lafferry himself, and he further says, "the defendant was entitled to the possession thereof, under the contract, for the whole of the year of 1869." It is evident, :then, the entry could not have been forcible ; nor 'could the plaintiff have been in actual possession at this Froni the declarations of law, as -laid down in the in-• structions given by the court below, it. must have thought that it was only necessary for the plaintiff to have shown that he had title to the land in question, and had . not given the defendant permission to enter upon' it, in order, to maintain this action. But this is erroneous. This is not the proper proceeding to try questions of title, but . that of possession; and of possession .only, where the plaintiff has been dispos, sessed by the acts of the defendant. . As to this case, as it would have been presented in an action of forcible detainer, we, at present, d • esire to say 'loth-'ing. Suffice it, to .say, that these two actions cannot be joined, at least, a warrant f ' or forcible entry cannot be the foundation for a verdict of forcible detainer. In the one,, force-is the 27 Ark.-4
50 CASES IN THE SUPREME COURT [27 'Ark. [DECEMBER gist of the action; the other is founded on a breach of contract. Yet, the court below has treated this case as though there was no difference, but that they might be commingled. For these reasons, judgment is reversed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.