Paxton v. Fisher, Secretary St. Land Bd. , 86 Utah 408 ( 1935 )

I concur. An examination of chapter 60 of title 104, R.S. Utah 1933, reveals that the statutes against forcible entry, forcible detainer, and unlawful detainer are designed to cover every possible situation where one person obtains actual possession of the property occupied by another or forcibly or unlawfully detains it, although peaceably entering. The statutes must all mesh. Section 104-60-1 covers the case where a person enters real property of another by breaking, violence, circumstances of terror, fraud, intimidation, or stealth. Subsection (2) covers the case in which the entry is peaceable, but the turning out is by force, threats, or menacing conduct; the theory of that provision being that the turning out by such means makes the initial entry a forcible one. Section 104-60-2, pertaining to forcible detainer, covers the cases where the entry may be peaceable or otherwise but the detainer is by force, in the absence of the occupant, or in the nighttime. Section 104-60-3 provides for the cases where real property is unlawfully withheld from another; the original possession being lawful. Under section 104-60-1, a person may forcibly enter but leave and not detain. The gist is the force or menace involved in the entry, being something more than a mere trespass. The gravamen of the action is not the detainer. Under section 104-60-2 the gravamen is the detainer. Under subsection (1) of that section the unlawful holding and keeping of possession is by force, menaces, or threats of violence. Under subsection (2) there need be no forcible entry nor detaining by violence. It is sufficient if the defendant unlawfully enters in the nighttime or during the absence of the occupants and after demand for the surrender thereof refuses for a period of three days to surrender the same to the former occupant. The former occupant need only show that he was in peaceable and undisturbed possession for five days preceding such alleged unlawful entry. It is under this subsection (2) that the plaintiffs finally prevailed after an amendment to their complaint. There is nothing in the evidence to show that the entrance was in the nighttime or was by force, fraud, intimidation, or stealth. There seems to be no question but that the plaintiffs were in peaceable possession for more than five days before the entry of Dearden, Sr. The statute reads:

"Every person is guilty of a forcible detainer who either: * * *

"(2) In the nighttime, or during the absence of the occupants of any real property, unlawfully enters thereon, and, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to such former occupant."

It will be noticed the statute does not require the demand to be made in writing and, further, that it does not require that the demand specify that the person alleged to be forcibly detained surrender the premises in the period of three days. In the statute under unlawful detainer it is specified that the notices should be in writing, and that they should be served upon the party alleged to be unlawfully detaining. In the statute dealing with forcible detainer, an oral demand is sufficient and when made it is incumbent upon the other party to vacate within three days or be subject to an action of forcible detainer. The demand does not need to specify that he shall vacate within three days. That is a duty put upon him by statute when the demand is made if he is forcibly detaining under the provisions of subsection (2) of section 104-60-2. For that reason I agree with the prevailing opinion that in this case the notice was sufficient. While it did not specifically make a demand, yet it was sufficient to apprise the defendant Dearden that the plaintiffs maintained that he was detaining the premises by force as meant by the statute. Instead of vacating within three days, he announced his refusal to vacate.

In this case the entry was unlawful. Under the statute, all entries on the actual possession of another are unlawful, and the question of good or bad faith on the part of the defendant does not affect the right of recovery in this form of action. Kerr v. O'Keefe, 138 Cal. 415, 71 P. 447; Giddings v. Seventy-sixLand Water Co., 83 Cal. 96, 23 P. 196; Voll v. Hollis,60 Cal. 569. Likewise, evidence of title or right of possession is inadmissible in an action of forcible detainer. McCauley v.Weller, 12 Cal. 500, where it was held:

"The action of forcible entry and detainer is a summary proceeding to recover possession of premises forcibly or unlawfully detained. The inquiry in such cases is confined to the actual peaceable possession of the plaintiff and the unlawful or forcible ouster or detention by defendant — the object of the law being to prevent the disturbance of the public peace, by the forcible assertion of a private right. Questions of title or right of possession cannot arise; a forcible entry upon the actual possession of plaintiff being proven, he would be entitled to restitution, though the fee simple, title and the present right of possession are shown to be in the defendant."

The law places one who is unlawfully or forcibly dispossessed back into the position in which he was before such event happened, regardless of the right to possession by the one forcibly or unlawfully entering. After that it is time enough for the parties to try out the question of title and possession. It is well stated in Scott v. Willis, 122 Ind. 1, 22 N.E. 786. The court said:

"The owner of land who is wrongfully held out of possession by one who has no legal or equitable right may embrace the opportunity and gain peaceable possession, if he can; but, unless he can obtain possession without force or show of violence, his sole remedy is to invoke the aid of legal procedure. To that end a special statutory proceeding has been provided, whereby a landlord who is entitled to the possession may have a tenant who unlawfully holds over removed. The same statute also provides that a tenant who has been evicted by force may have the possession restored to him, even against a landlord who might have had him removed by legal procedure, on complaint by him made, in the same manner as provided in case of tenants holding over."

In the case at bar the defendant may have had the right to possession, but his entry was unlawful as against the plaintiffs. It is not his right to possession which is unlawful, but his entry on the possession of another, however untenable in law that possession may be. The word "unlawful," as used in this section, means unlawful with respect to the relations between the plaintiff and defendant. See Dutcher v. Sanders, 20 Cal. App. 549,129 P. 809. In Carteri v. Roberts, 140 Cal. 164,73 P. 818, 819, the court said:

"It is a necessary element to the cause of action here presented that the entry of the defendants upon the land should have been unlawful with respect to the relations between the defendants and the plaintiff."

The entry is unlawful in respect to the relation between the plaintiff and defendant whenever the defendant enters without the permission of the plaintiff. Some jurisdictions have seemed to recognize that an entry on the possession of another may not be unlawful where, by the contractual relations between the parties, the one entering has the right to possession. Thus, in the case of Baxley v. Western Loan Building Co. (1933) 135 Cal. App. 426,27 P.2d 387, 388, it was held that while neither title nor right of possession of real property is ever an issue in actions where forcible entry or forcible detainer is charged, the right of possession might be shown in evidence in certain cases where forcible detainer is charged. This was the case in which the vendor was given the right under the contract upon default to "reenter upon the premises and resume possession thereof." The Baxley Case has some resemblances to the case at bar. The vendee assigned his contract to purchase to the plaintiff who took possession but made no further payments. He did not reside on the premises (just as the Paxtons did not reside on these premises), but engaged Mrs. Roberts to act as manager of the apartment house. The defendant talked to Mrs. Roberts, told her that it was the owner of the premises, and that the vendee was in arrears. The following morning Mrs. Roberts admitted Mr. Campbell, another employee of the defendant, and installed him in one of the vacant apartments and agreed with Mr. Campbell that she would act as manager for and on behalf of the defendant. Plaintiff later appeared and demanded that Campbell leave the premises. He refused to do so. Plaintiff made demand on the defendant for the possession of the same, the defendant refused and the action of forcible detained was brought. The material differences between the Baxley Case and the case at bar are that there was no contracutal relation between the Paxtons and the Deardens, whereas in the Baxley Case there was a contractual relation between the defendant and the plaintiff's assignor. In the Baxley Case, the manager of the plaintiff actively consented and installed the defendant in the premises. The servants of the plaintiff and the occupant of the house in the instant case simply walked off the premises, vacating them and leaving the defendant to enter. The court in the Baxley Case does not discuss the question as to whether there was an absence of the occupant. The court in that case held that possession had been obtained peaceably. It did not hold that it was given by the consent of the plaintiff; it being apparent that Mrs. Roberts had no authority to give such consent. The decision was put upon the basis that:

"When contractual relations exist between the parties whereby the right to possession has been given to the one taking possession by means of the peaceable entry, then neither the entry nor detention of the property is `unlawful' within the meaning of said section 1160 dealing with forcible detainer."

The Baxley Case shows the distinction by citing from Dutcher v. Sanders, supra. There the parties were adverse claimants in a contest before the United States Land Office involving land in the possession of the plaintiff. The contest was decided against plaintiff, and defendant took possession of the land in the absence of the plaintiff. He refused to relinquish possession on plaintiff's demand, and plaintiff brought an action in forcible detainer under a statute similar to ours. The court held that the defendant's peaceable entry was unlawful despite the fact that in the contest the Commissioner of the General Land Office had canceled plaintiff's previously existing desert land entry on the land and awarded the preference right to the defendant. In short, in the Dutcher Case, as distinguished from the Baxley Case, there was no contractual relationship between plaintiff and defendant by which the plaintiff had by such contract permitted defendant to enter. I doubt the validity of this distinction. It seems to me it would throw open many issues not contemplated by the summary proceedings. Leases permitting entry after default would, it appears to me, come under this rule, and even in California it is held that where a tenant holds over the landlord must resort to the statutes covering unlawful detainer. It may be said of the Baxley Case, however, that the entry was peaceable; Mrs. Roberts having left the representative of the loan company in possession and, moreover, the occupant Baxley may not have been absent, since he was occupying at the time of entry through Mrs. Roberts.

Be that as it may, in the instant case there was no contractual relation between the Paxtons and Deardens. Therefore, if the principle of the Baxley Case is correct, it cannot apply here.

I agree with the prevailing opinion that the entry of Dearden, Sr., was unlawful as against the plaintiff who still had the right not to have his possession disturbed, whether right or wrong, by the entry of another; that the plaintiff had peaceable possession for five days prior to such unlawful entry; that proper demand was made and that defendant Dearden, Sr., refused to relinquish possession.

In general, where one moves in on the possession of real property occupied by another by force or menace or in the nighttime, or in the absence of the latter, and remains, so as to constitute it more than a trespass, he does so at his peril, even though he may have the right to the possession.

The law contemplates that he who claims possession as against another will demand it and upon refusal resort to law to obtain it, and not take the law into his own hands. In this sense the first occupants possession is nine points of the law.

I therefore concur.