Reay v. Cotter

By the Court, Sanderson, C. J. This is an action to recover possession of certain premises under the provisions of the Act concerning forcible entries and unlawful detainers.

It appears upon the face of the complaint that the premises in question were leased to James Irwin, one of the defendants, by one Richard M. Treadway, who subsequently sold and conveyed the premises by deed to the plaintiff, and also assigned and transferred to him the lease in question, which was in writing; but it does not appear, and it is not alleged, that Irwin subsequently attorned to the plaintiff or in any manner recognized him as his landlord.

An answer was filed, setting up several defenses, which it is not necessary to notice, for we propose to consider the case as if before us on demurrer to the complaint. When the case was called for trial the defendants moved that the case be dismissed, on the ground, in effect, that the Court had no jurisdiction over the case made by the pleadings, which was, as claimed by defendants, substantially an action of ejectment, and not an action within the meaning of the Act concerning unlawful detainers. The motion was allowed by the Court, and the plaintiff has appealed.

[170]The only question presented by the record is as to whether the plaintiff, being the vendee of the original or conventional landlord, and as to the lease merely his assignee, can avail himself of the remedy provided by the- Act in question, the tenant never having attorned to him; it being claimed on the part of the defendant that the remedy in question is given only to the conventional landlord and not to his grantees, devisees, heirs or assigns, unless the tenant shall have attorned to them.

Regarding the plaintiff merely in the character of assignee of the lease, he certainly could not maintain this or any other action for the possession, for by the assignment of the lease he acquired no reversionary interest in the land, but merely a right to receive the rent. If, then, he can maintain the action, it must be solely upon the ground that he has succeeded to the original landlord’s title, and by operation of law become entitled to all the rights and remedies which he had.

Upon inspection of the fourth section of the Act (Statutes 1863, p. 653), it will be found that this remedy is conferred only upon “the landlord,’’ and is not given in terms at least to his successors in estate. Is, then, the vende,e or devisee, or heir (for they are all in the same category) of the landlord or lessor a “ landlord ” within the meaning of that section ?