Durie v. McLish , 2 Indian Terr. 610 ( 1899 )

Clayton, ’J.

Several errors are assigned by appellant, but it will only be nec^ ,sary to consider the one as to the refusal of the court to instruct the j ury to return a verdict for the defendant. This is an action for unlawful detainer. The plaintiffs relied wholly upon their rental contracts with the defendant. None of the elements of the action of ejectment enter into the case. The plaintiffs did not plead, nor did they seek to prove, their title to the premises, but based their entire right to recovery upon the termination of the relation of landlord and tenant between them and the defendant. In actions for unlawful detainer, it must be shown that demand was made in writing for the delivery of the possession of the premises. In this case this was not done. It is not alleged-in the complaint, nor established by proof. On the contrary, the testimony of the plaintiffs affirmatively shows that no such demand was. made. The court should therefore have instructed'the jury to return a verdict for the defendant. Mansf. Dig. §§ 3348-3351 (Ind. T. Ann. St. 1899, §§ 2282-2285). Let the judgment of the court below be reversed, and the cause remanded.

Springer, C. J., and Thomas and Townsrnp, JJ., concur.