The defendant below, who is the appellee here, has moved for rehearing and upon consideration of the motion, we withdraw our former opinion heretofore filed, substituting this one therefor.
The plaintiff has appealed from a judgment of the district court dismissing his complaint in forcible entry and detainer, following an appeal by defendant to such court from an adverse judgment rendered by a justice of the peace. The complaint is in the following form, to-wit:
"Kenneth A. Heron, plaintiff in the above entitled cause, complains and says, that heretofore, to wit: On or about the first day of March, 1938, at the County of Rio Arriba, New Mexico, he was lawfully entitled to the possession of a certain tract of land, situated in said County, known, designated and described as follows:
"That certain tract of land located in the South half of the Northwest Quarter of Section Thirty One, Township Two South, Range Three East, in the Arlington Land Company's Subdivision of a Portion of the Tierra Amarilla Grant, Rio Arriba County, New Mexico, and bounded as follows:
"On the North by the Jack Cowan place;
"On the East by the State Highway;
"On the South by the Chiles place; and
"On the West by the tract of land known as the old Gentry Place; The said tract of land contains 8 acres, more or less, and being so thereof lawfully entitled to possession as aforesaid, the said defendant Patsy Kelly, on the day and year, and at the County aforesaid, unlawfully and with force, the plaintiff is informed and believes, did enter the said premises in the following manner: (a) took down the gate in the fence around the said premises and entered thereon; (b) forced open the door of a building on the said premises and therein entered; and (c) moved her goods and chattels into the said building; (d) and proceeded to reside therein and thereon; all without the permission and against the will of the plaintiff and without his consent; and in these ways the defendant entered into and upon the said tract of land, and detained and held possession thereof, and such detains and holds the possession thereof against the plaintiff; all to the damage to the plaintiff in the sum of $150.00 to date and the further damage of fifty cents a day for each and every day the premises is so unlawfully detained by the defendant.
"Wherefore the plaintiff says that the said defendant is guilty of forcible entry and detainer, contrary to the form of the statute in such cases made and provided. *Page 125
"Plaintiff further states that the land described above is in the Rutheron Precinct No. 43, Rio Arriba County, N.M., but this complaint is filed in the Tierra Amarilla Precinct No. 17, in the same County for the reason that there is no qualified and acting Justice of the Peace in the said Rutheron Precinct, and further that the Tierra Amarilla Precinct adjoins the Rutheron Precinct."
The defendant filed an answer to the complaint consisting of a general denial and in due course the case came on for trial. Thereupon, the defendant moved orally (in effect an oral demurrer) for dismissal of the complaint as failing to state a cause of action through absence of an allegation that the plaintiff was in lawful possession of the premises described at the time of the defendant's wrongful entry. Argument was had, following which, the trial court sustained the motion and dismissed the complaint. The order of dismissal reads as follows:
"This matter coming on for final hearing on the Complaint herein, and the plaintiff being present in person and representing himself, and the defendant not being present but being represented by Arthur Livingston, attorney at law, and
"The plaintiff announcing himself ready to proceed, and
"The defendant then moving that the Complaint and cause of action be dismissed for the reason that the Complaint does not state a cause of action, and
"The Court having heard arguments of both counsel on the matter, and being duly advised and satisfied in the premises,
FINDS:
"1. That the Complaint does not state a cause of action."And the plaintiff announcing that he would stand on the Complaint,
"It is, therefore, ordered, adjudged and decreed that the cause of action herein be and the same is hereby dismissed.
"It is further ordered that the plaintiff pay the costs in this matter, and that the defendant be and she hereby is granted judgment against plaintiff for said costs."
The pertinent statute under which the plaintiff brings his action is 1941 Comp. § 38-901 which, insofar as material, reads:
"An action for forcible entry or unlawful detainer of real property may be prosecuted before any justice of the peace in the precinct where the property is situated, in the following cases:
"First. When the defendant by force, intimidation, fraud or by stealth, enters or shall have entered in the lands and tenements of another and detains the same for the purpose of proving any of the reasons or causes enumerated in this section, it shall not be necessary to show that there was force, intimidation or fraud apparently or physically; and it shall be sufficient to prove that defendant entered upon and occupied the premises against the will or consent of the owner or owners thereof, *Page 126 and that after having been notified by the owner, his agent or attorney to vacate the same, he refused to do so.
"Second. When a lessee or tenant holds over after the termination or contrary to the terms of his lease or tenancy.
"Third. When the tenant fails to pay the rent at the time stipulated for payment.
"Fourth. When the defendant continues in possession after a sale by foreclosure of mortgage, or on execution, unless he claims by a title paramount to the mortgage by virtue of which the sale was made, or by title derived from the purchaser at the sale.
"Fifth. When a tenant from month to month or tenant at will continues in possession of the premises after thirty (30) days' written notice by the owner, his agent or attorney to vacate the same."
The same legislative session by L. 1876, c. 27, § 124 (1941 Comp. § 38-1101), provided a statutory form for use in forcible entry and detainer actions, reading:
"The following forms are prescribed for the use of justices of the peace in the actions mentioned, and shall be used by them in all such cases:
"In Forcible Entries and Detainers "Complaint "A.B. | Before E.F., justice of the vs. | peace in and for _____ precinct, C.D. | number ____ in ____ county.
"A.B., plaintiff in the above entitled cause, complains and says, that heretofore, to wit: On the ____ day of ____, A.D., 19__, at the county of ____, he was lawfully possessed (or lawfully entitled to the possession) of a certain tract of land, (or a certain tenement, etc.), situated in said county, known, designated and described as follows: (here describe the land or tenement with reasonable certainty), and being so thereof lawfully possessed (or lawfully entitled to possession), as aforesaid; the said defendant, C.D., on the day and year, and at the county aforesaid, unlawfully and with force (according to the facts), entered into and upon the said tract or parcel of land (or tenements), and detained and held the possession thereof, and such, (still) detains and holds the possession thereof against the plaintiff. Wherefore the said plaintiff says that the said defendant is guilty of forcible entry and detainer, contrary to the form of the statute in such case made and provided.
"(Signed) A.B. "State of New Mexico, | | "County of _____ |
"A.B., being duly sworn, says that the said complaint by him subscribed, and the matters therein contained are true, and further saith not.
"A.B.
"Sworn to and subscribed before me this ____ day of ____, A.D. 19__.
"E.F.,
"Justice of the Peace."
In ruling on the demurrer interposed by defendant, the following proceedings between court and counsel took place, to-wit: *Page 127
"The Court: I don't think there is any question about that point, there is no question about the construction of the statute. The remedy is entirely statutory, and the statute must be strictly complied with. As Mr. Livingston has stated, there are, you might say, two sets of circumstances under which you can bring this action. One is in the event the property is unlawfully entered when you are in possession, and the other is when a person whom you have put in possession holds over at the end of his term. Naturally in the second case you cannot allege that you are in possession of the premises, and that is the reason shown in the brackets in the J.P. forms (where) the alternative is printed, and in my opinion, in order to state a proper cause of action, you would have to allege you are entitled to possession, or, if you allege you are entitled to possession, I believe your Complaint would have to be so qualified as to show that you were the one who put the person in possession and that they held over after the term. Therefore, you could not allege possession by merely alleging you were entitled to possession, and as the Complaint now stands I cannot see where it states a cause of action at all, and I think Mr. Livingston's objection to the introduction of any testimony showing that the plaintiff was in the possession would be well taken. I don't like to preclude anybody from the trying of a case because of defective pleadings, but on the other hand the Court is bound by the rules of practice and procedure, and cannot ignore those rules of practice and procedure in order to satisfy his own desire in any given case. Do you have anything further to say, Mr. Heron, before I rule on this Motion?
"Mr. Heron: First of all, that I be permitted to amend the Complaint by interlining — no I believe I will stand on the complaint as it is.
"The Court: Then I will sustain the motion, and dismiss the case."
The plaintiff, who was and is acting as attorney pro se, does not dispute (and if he did every implication of his complaint is to the contrary) that he is proceeding under the first sub-paragraph of § 38-901, which at the time of its original enactment as L. 1876, c. 27, § 101, provided the remedy, on occasions, among others, as follows: "1st. When the defendant has by force, intimidation, fraud or stealth, entered upon the lands and tenements of another and detains the same." The language following that just quoted which placed this sub-paragraph in its present form, as set out more fully hereinabove, was added as an amendment by L. 1889, c. 92.
The question for decision is simply whether a plaintiff proceeding in forcible entry and detainer under the first sub-paragraph of the statute quoted hereinabove states a cause of action without alleging prior lawful possession of the premises involved. It is to be noted that in the statutory form of complaint the plaintiff must allege that theretofore on a day named "he was lawfully possessed (or lawfully entitled to the possession) of a certain tract of land," etc. The present plaintiff insists *Page 128 that these are simply alternative allegations giving a choice to be made by the pleader, regardless of whether the proceeding be one in forcible entry and detainer as traditionally understood or one in unlawful detainer only. This idea on plaintiff's part is reflected by the following language taken from his brief, to-wit: "The form prescribed permits the plaintiff to use the words `he was lawfully possessed' or `lawfully entitled to the possession'. The plaintiff elected for his own reasons to use the latter wording. The matter of proof to sustain the action was governed by the sections providing for the institution and prosecution of the action."
Seemingly, at the trial the plaintiff was momentarily doubtful of the correctness of this appraisal of the statutory form, since on the eve of the trial court's ruling on the motion to dismiss, he asked leave to amend by interlineation. Then, suddenly, he changed his mind. In response to the trial court's inquiry whether he had anything further to say, before a ruling on the motion, the plaintiff stated: "Mr. Heron: First of all, that I be permitted to amend the Complaint by interlining — no I believe I will stand on the Complaint as it is."
In so concluding we think the plaintiff fundamentally misconceived the true nature of an action in forcible entry and detainer as it has been viewed in this jurisdiction from early territorial days. Romero v. Gonzales, 3 N.M. 5, 1 Gild. 5, 1 P. 171; Patton v. Balch, 15 N.M. 276, 106 P. 388; Murrah v. Acrey,19 N.M. 228, 142 P. 143; Heron v. Ramsey, 45 N.M. 491,117 P.2d 247. In Murrah v. Acrey we quoted from the opinion in Iron Mountain H.R. Co. v. Johnson, 119 U.S. 608, 7 S. Ct. 339,30 L. Ed. 504, and commented on the rule enunciated, as follows [19 N.M. 228, 142 P. 144]: "`This is the philosophy which lies at the foundation of all these actions of forcible entry and detainer which are declared not to have relation to the condition of the title, or to the absolute right of possession, but to compelling the party out of possession who desires to recover it of a person in the peaceable possession to respect and resort to the law alone to obtain what he claims.' Iron Mountain, etc., Co. v. Johnson, 119 U.S. 608, 7 S. Ct. 339, 30 L. Ed. 504. And this rule, we believe, is in harmony with practically all the English and American decisions. The inquiry, as stated by the author of an extended note to the case of Wilson v. Campbell [75 Kan. 159,88 P. 548], 8 L.R.A., N.S., 426 [121 Am. St. Rep. 366, 12 Ann. Cas. 766], in a forcible entry and detainer proceeding, `is confinedto the question of the actual, peaceable possession of theplaintiff irrespective of whether rightful or wrongful, and the forcible ouster of plaintiff by the defendant.' A great many authorities are cited in support of the text, and we believe there are none to the contrary, under statutes similar to our own. See, also, note to the same case, reported in 12 Ann.Cas. 767. And the question was settled by the Territorial Supreme Court in two cases: Romero v. Gonzales, 3 N.M. *Page 129 (Gild.) 5, 1 P. 171; Patton v. Balch, 15 N.M. 276, 106 P. 388." (Emphasis ours)
In Heron v. Ramsey, 45 N.M. 491, 117 P.2d 247, 250, we very recently reaffirmed the importance and necessity of plaintiff's prior actual, peaceable possession as a prerequisite to his right to maintain forcible entry and detainer. We said: "The foundation of the plaintiff's right to maintain this action is to prevent a breach of peace. The person who seeks to avail himself of this remedy must have actual possession of the premises, it must be something more than a mere mental state. It must be of such a character that the law will frown down upon anyone interfering with the possession for the reason that such interference would tend to create a breach of the peace."
In the opinion in the case just cited the plaintiff failed in a forcible entry and detainer action because he did not prove prior possession. Here judgment goes against him because he failed to allege what the plaintiff in the Heron case, supra, failed to prove — prior lawful possession. The allegation is no less important than the proof. Gray v. Titsworth, 27 N.M. 39,192 P. 520, 521. In the Gray case we spoke on the necessity of pleading prior possession in forcible entry and detainer, as follows: "It is argued that the complaint fails to state a cause of action in forcible entry and detainer, in that it does not allege that appellee was in possession of the real estate in question at the time appellants entered and took possession of the same. This objection would be meritorious, but it was waived in the court below. No objection was there interposed to the complaint, and the appellee was allowed to introduce proof of her possession, without objection."
It is no answer to this sound statement of the true rule to call this pronouncement dictum on the assumption that possession was not involved, the complaint alleging neither possession nor right to possession. If the court had been disposed to indulge in dictum it might have assumed, without deciding, that possession was an essential allegation and then have held as it did. It did not choose so to do. Instead, the court held, squarely, that but for the failure to object below to the complaint on this ground and but for the subsequent introduction, without objection, of proof of possession, the "missing allegation" would have proved fatal. The question thus is rendered stare decisis by our decision in Gray v. Titsworth.
We think it has been demonstrated, abundantly, that in New Mexico a plaintiff must both allege and prove prior possession. Our holding on the subject accords with the prevailing rule. 26 C.J. 846; 36 C.J.S., Forcible Entry and Detainer, § 40, p. 1176. Tested by it, the plaintiff's pleading is fatally defective. Finding in the statutory form of complaint (1941 Comp. § 38-1101) the two different allegations, the one that "he was lawfully possessed" and the other, in parenthesis, that he was "lawfully entitled to the possession", the plaintiff was not impressed that *Page 130 the separate allegations were designed for use in stating distinct causes of action. Rather, as said in his brief in chief, he deliberately "elected for his own reasons to use the latter wording". In so electing, he made a fatal mistake, proceeding as he was in forcible entry and detainer. The one allegation, that of possession, is for use in the action of forcible entry and detainer. The other, that of right to possession, is for use in the action of unlawful detainer.
Although the phrase "forcible entry and detainer" is in common use and one is likely by reason thereof to think of the quoted words as constituting a single wrong, such is not the case. It is rare that both terms will apply to a single proceeding. "Although force ordinarily is an element of both, they are separate and distinct wrongs." 22 Am.Jur. 906.
"The forcible entry and the forcible detainer are separate causes of action, and ought, therefore, to be separated. If not so stated, a complaint would be had on demurrer", etc. Id. 938.
What is said on the distinction between forcible entry and forcible detainer as constituting separate causes of action is just as true of forcible entry and unlawful detainer. We held as much in Gray v. Titsworth, supra. A mere reading of the governing statute, 1941 Comp. § 38-901, compels such a conclusion. The first subsection covers the case of an unlawful and usually forcible entry on one in possession. The four remaining subsections, on the other hand, represent instances where a possession rightful in its origin becomes unlawful by a holding over after termination or contrary to the terms of a lease and so forth.
As an answer to these controlling considerations, it is suggested that through seeming inadvertence, when the legislature prescribed a statutory form for use in forcible entry and detainer, it forgetfully provided one for forcible entry only, thus neglecting to furnish one for the more frequently occurring case of unlawful detainer. Such an answer makes slight appeal to reason and should be accepted only if inescapable.
It seems perfectly obvious from a reading of the prescribed form (1941 Comp. § 38-1101), enacted as Section 124 of L. 1875-76, c. 27, authorizing forcible entry and detainer actions, that it was adaptable either to forcible entry and detainer or unlawful detainer as the facts might warrant. The form first prescribes the allegation that plaintiff is "lawfully possessed" (for forcible entry), followed immediately by the parenthetical language, "or lawfully entitled to the possession" (for use in the event the case is one of unlawful detainer instead). The prescribed allegation — "the said defendant, C.D., on the day and year, and at the county aforesaid, unlawfully and with force" — is followed immediately (in the very midst of allegations appropriate only in forcible entry and detainer) by the parenthetical legislative admonition "according to the facts". *Page 131
It is as though the legislature had said: "You may allege forcible entry but if that allegation does not fit the facts, then supply allegations according to the facts." That the legislature intended the statutory form of complaint for use in either forcible entry and detainer or unlawful detainer, as the facts might warrant, is emphasized by the fact that the statutory summons provided, which follows immediately the statutory form of complaint (1941 Comp. § 38-1101), calls upon the defendant to "defend against the complaint of A.B., of forcible entry and detainer (or of an unlawful detainer)", etc. The legislature thus provided a statutory summons adaptable either to forcible entry and detainer or unlawful detainer "according to the facts", just as it had provided a statutory complaint employable in either instance, as the facts might warrant.
It was natural that an allegation appropriate to forcible entry and detainer should be first employed in the form prescribed, since that cause of action is provided for in the first subsection of 1941 Comp. § 38-901. It is wholly unreasonable to suppose the legislature simply forgot to provide a form for the three remaining subsections covering instances of unlawful detainer which from their very nature would be much more frequently employed than forcible entry and detainer under the first subsection.
Furthermore, it seems unnatural to suppose the legislature would consider sufficient in a complaint in forcible entry and detainer the mere allegation that on the day mentioned, the plaintiff was "lawfully entitled to the possession" when the broader allegation that he "was lawfully possessed" would affirm as a matter of law his right to possession. The legislators seemingly were mindful of the rule that in forcible entry and detainer "it is not sufficient to allege that plaintiff was lawfully entitled to possession". 36 C.J.S., Forcible Entry and Detainer, § 40, p. 1176. If actually in lawful possession, then, of course, the plaintiff was rightfully so and, hence, "entitled to possession". However, he may be lawfully "entitled to the possession" on the day mentioned yet, as a matter of fact, out of possession. If both facts exist, viz., possession and right to possession, the case is one in forcible entry and detainer; if one only exists, namely, right to possession, then the case is one of unlawful detainer.
Since, as already shown, forcible entry and unlawful detainer are separate causes of action, based on separate and distinct wrongs and hence bad on demurrer if joined as one in a complaint, how could a defendant take advantage of the misjoinder if an allegation touching possession, good as to either forcible entry or unlawful detainer, were deemed permissible? No satisfactory answer has been furnished to this query.
In our opinion the legislature in its original enactment (L. 1875-76, c. 27) did not forget that it was providing for three cases of unlawful detainer as against one in forcible entry and detainer and supply *Page 132 a statutory form of complaint for the one only and neglect the three.
On the contrary, by a wise and generous use of parenthetical expressions, it said in language which he who runs may read that the plaintiff must allege possession if proceeding in forcible entry and detainer and a mere right to possession if proceeding in unlawful detainer.
There should be no difficulty in accommodating the statutory form of complaint to either an action in forcible entry and detainer or unlawful detainer only. If the facts suggest the former action, the pleader alleges possession; if they suggest the latter action, the parenthetical phrase, that of right to possession, is employed. Then when he reaches the portion of the complaint which describes defendant's wrong in relation to the land, the pleader either employs or omits the allegation of unlawful entry with force, "according to the facts", as the form itself prescribes, and alleges instead the nature of the unlawful detention, whether by holding over after expiration of a lease, or otherwise, according to the facts. No formality of pleading is required. Substantial compliance with the statutory form of complaint is sufficient. Springer v. Wasson, 23 N.M. 277,167 P. 712; Puckett v. Walz, 41 N.M. 612, 77 P.2d 623. This court took no exception in Springer v. Wasson, 25 N.M. 379, 183 P. 398, to employment of the statutory form of complaint, even where the evidence might disclose unlawful detainer only, the case being one of holding over after an execution sale.
It follows from what has been said that the judgment of the trial court is correct and should be affirmed.
It is so ordered.
MABRY and THREET, JJ., concur.