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or other real property, after the determination of the time for which such lands or real property were let to him, or to the person under whom he claims, after demand made in writing for possession thereof, by the person or persons entitled to such possession, shall be adjudged guilty of forcible entry and detainer. (Old. and White's Dig. art. 932.)
It has been held by the court that in an action of forcible entry and detainer under the statute, the right of possession must be the question, and not the title to the land; but in case of landlord and tenant, the tenant will be estopped from questioning the title of the landlord, but the question, however, to be litigated is only the right of possession. (Warren v. Kelly, 17 Tex. R. 544.)
In California, the statute makes all leases for a longer period than ten years void, except that leases for town or city lots may be for a term not exceeding twenty years. (Wood's Dig. 1860, p. 110.)
. The statutes of California provide that whenever there is a tenancy at will, or by sufferance, created by the tenants holding over his term, or otherwise, the same may be terminated by the landlord's giving one month's notice in writing to the tenant, requiring him to remove from the premises; which notice must be served by delivering the same to the tenant, or to some person of proper age residing on the premises; or, if the tenant cannot be found, and there be no such person residing on the premises, the same may be served by affixing the same on a conspicuous part of the prenises, where it may be conveniently read. At the expiration of one month froin the service of such notice, the landlord may reenter or maintain ejectment, or proceed in the manner prescribed by law to remove such tenant, withont any other or further notice to quit. (Laws of 1861, ch. 462, SS 1, 2, 3.) And it is also provided, that, in all leases of lands or tenements, or any interest therein, froin month to month, the landlord may, upon giving notice in writing, at least fifteen days before the expiration of the month, change the terms of the lease, to take effect at the expiration of said month; and said notice, when served upon the tenant, will of itself operate and be effectual to create and establish, as a part of the lease, the terms, rents, and conditions specified in the notice, if the tenant continue to hold the premises after the expiration of the month, and in all leases of lands or tenements for a month, or any term less than one year, and the tenant holds over his term by consent of his landlord, the tenancy will be construed
· to be a tenancy from month to month, or a tenancy for such term less than a year, as the case may be. (Laws of 1863, ch. 411, § 6.)
This concludes the summary which it was proposed to give of the statutes of the several states, in respect to the determining of tenancies for uncertain periods, and the action to recover the possession of real property, as between landlord and tenant. It has been the design to give the substance of the statutes now in force upon the subject, but from the fact that the legislation of several of the states, especially in the south, is undergoing some change, it is possible that in some instances a sightly different rule may be ultimately established than what is here given. It is thought, however, that the summary here given is quite accurate, and especially so as to all of the northern and western, and most of the southern states; and that the same can be relied upon, except as the law may be modified by after legislation.
THE ANCIENT PRACTICE IN THE ACTION OF EJECTMENT, AND THE CASES
IN WHICH IT IS STILL NECESSARY IN ENGLAND.
MR. Adams, in his treatise on the principles and practice of the action of ejectment, has a short chapter explaining the ancient practice in the action, and giving the cases in which it is still necessary under the English jurisprudence. But the subject is of little or no practical importance in this country, except as a mere matter of history; and for that object the matter will be touched
In England, where the remedy by ejectment is prosecuted in an inferior court, the fictions of the modern system are inapplicable, for inferior courts have not the power of framing rules for confessing lease, entry and ouster, nor the means, if such rules were entered into, of enforcing obedience to them. Where, also, the
. premises are vacated and wholly deserted by the tenant, and his place of residence is unknown, the modern common law practice, which requires an affidavit of the service of a declaration in ejectment upon the tenant in possession, before judgment can be obtained against the casual ejector, cannot be adopted. But strict proof of these facts will be required, and if it appear that the premises were not wholly deserted, or that the plaintiff's lessor knew where the tenant lived, a judgment obtained by means of the ancient practice will be set aside. (Savage v. Dent, Strange's R. 1064. Jones v. March, 4 Term R. 464. Adams on Ejectment, 199.)
When, therefore, the party brings his action in a superior court, the possession being vacant, and the lessor's abode unknown, and when he is desirous of trying his title in a court of inferior jurisdiction (but in these cases only), all the forms of the ancient practice must be observed ; a lease must be sealed upon the premises ;
1 an ouster actually made; and the parties to the suit will be real and not imaginary persons.
The proceedings are as follows: A, the party claiming title, enters upon the land before the first day of the term of which the declaration is to be entitled, either in person or by attorney; and, while on the premises, executes a lease of them to B (any person who may accompany him), and delivers to him the possession by some one of the common modes. C(some other person) then enters upon the premises and ejects B therefrom, and, having done so, remains upon them while B delivers to him a declaration in ejectment, founded upon the demise contained in the lease, and in all respects like the declaration in the modern proceedings, except that the parties to it are real instead of fictitious persons; B being the plaintiff, A the lessor, and C the defendant. To this declaration a notice is added, signed by B's attorney, and addressed to C, requiring him to appear and plead to the declaration, and informing him that, if he do not, judgment will be signed against him by default. If it be necessary to join the wife in the demise, the lease must be executed by the parties, in their proper persons, because a feme covert cannot constitute an attorney. An attorney cannot be the lessee to whom the lease is executed, because the rules of court provided, “ that, for the prevention and maintenance and brocage, no attorney shall be lessee in ejectment.”
The suit then proceeds as against the casual ejector, and, if the action be bronght in a superior court, no person claiming title will be admitted as defendant in his stead. Assuming, therefore, the right to the premises to be disputed, the party sealing the lease must, in the first instance, recover the possession, and the party claiming title must afterward bring a common ejectment against
him to try his right. (Ex parte Beauchamp, Barn. R. 177. Same Case, Buller's Nisi Prius, 96.)
When the proceedings were in the queen’s bench, judgment was moved for against the defendant, upon an affidavit of the sealing of•the lease, ouster of the plaintiff, etc., as in a common ejectment. (Smartley v. IIenden, 1 Salk. R. 255.) And unless the defendant appeared and pleaded, judgment would be signed against hiin accordingly. In the common pleas, a rule to plead had to be given on the first day of term, as in other actions, and judgment signed at the expiration of the rule. (2 Sell. Prac. 131.)
It seems to be immaterial, as far as the forms of sealing the lease, etc., are concerned, whether the action be commenced in a superior or inferior court; but the subsequent proceedings in inferior courts must of course depend upon the general practice in them in other actions, and cannot be explained here. How far it may be necessary to give the tenant in possession notice of the claimant's proceedings, in an ejectment brought in an inferior court, may appear doubtful, says Mr. Adams, when it is remembered that such notice was only requisite in the superior courts, in consequence of a rule made for that particular purpose; but it is regarded as more prudent to conform to the general practice in this respect, and it seems the notice need not be given until after the entry, and execution of the lease. (Adams on Ejectment, 262.)
If an ejectment be brought in an inferior court, the defendant is entitled to remove it, by certiorari or habeas corpus, to a superior court. (Highman v. Barlow, Barn. R. 421. Allen v. Forman, 1 Siderfin's R. 313.) And if the action is thus removed, and the plaintiff in ejectment declares against the casual ejector, the tenant in possession is entitled to the same privilege of confessing lease, entry and ouster, and defending the action, as if the plaintiff had originally declared in the superior court; indeed, by the practice in such cases, the plaintiff usually declares de novo in the court above. (2 Bac. Abr. 166.)
An ejectment brought in an inferior court, on a lease executed and sealed on the premises, which were within the jurisdiction of that court, may be removed into the superior court, by certiorari, if there be any ground for believing that it cannot be impartially tried in the inferior court. (Patterson v. Eades, 3 Barn. & Cres. R. 550.)
If the ejectment be removed from an inferior to a superior court, the superior court will not grant a procedendo, if there be reason for believing that an impartial trial cannot be had in the inferior court, or upon other special grounds; and although the point decided in the case in Barnwall and Creswell is as stated above, yet it is to be inferred from the reasoning of the judges, that a writ of certiorari is a matter of course, and that a procedendo will in no case be granted.
It is said in Bacon's Abridgeinent that if a habeas corpus be brought to remove a cause in ejectment out of an inferior court, and the lands lie within their jurisdiction, and the lessor of the plaintiff seals a lease on the premises, the courts above will grant a procedendo, because the title of the land is a local matter, properly within the jurisdiction of the court below, when, if they proceed regularly, they shall not be prohibited; but if the lessor has not sealed a lease on the premises, or if the inferior court has not an exclusive jurisdiction of the case, a procedendo will not be granted. (2 Bac. Abr. 166.)
But, if the lands lie partly within, and partly withont the jurisdiction of the inferior court, or as it is expressed in Bacon's Abridgement, if the lands lie partly within the cinque ports, and partly without, the defendant cannot plead alone the jurisdiction of the cinque ports, or of such inferior court, for though the land be local matter, the demise is transitory and triable anywhere. Therefore, though the plaintiff may lay his action for that which lies within an inferior jurisdiction in the court below, if he takes proper measures for that purpose, yet if he will lay it above, since the demise is transitory, the defendant cannot stop his proceeding, because the courts above for such transitory matters have a proper jurisdiction. (2 Bac. Abr. 166.)
If the defendant in an inferior court comes into a rule to confess lease, etc., and the cause be removed by habeas corpus, and the judge of the inferior court grants an attachment against the defendant for disobedience to the rule, the superior court will grant an attachment against such judge for compelling obedience to their rules, and thereby obstructing the business of the superior courts, since the defendant is not bound by the rule he entered in the inferior court, such rule being only the practice of the superior courts. (2 Bac. Abr. 166.)