In this case the appellees have filed no brief; The brief of appellant is elaborate and full, but, in our view of the case it is unnecessary to consider all of the assignments of error made by the appellant, insomuch as we have found error in the record which will make it necessary to remand the case.
*25It will be noticed from the record that this action was begun in April, 1901, by filing a complaint in the office of the clerk and the issuing of possession and a summons thereon; that plaintiff made no bond under this writ of possession, and defendant was allowed to continue in possession of the premises sued for. The complaint was never sworn to, nor was any affidavit made in the case as required by the statute, Mansfields Digest, See. 3351, until April 16, 1903, when the court permitted the complaint to be verified as an amended complaint. We find however from the record, that prior to the verification of this complaint, namely on February 25, 1902, that an alias writ of possession was issued in said cause and served on March 22, 1902. That on the issuing of this writ the plaintiff in the action gave the bond contemplated by Mansfield's Dig., sec. 3352 and the defendant thereupon within ten days thereafter, gave a counter bond and retained possession of the premises.
It will be noticed from the foregoing statement and the record that this cause was tried to a jury and verdict rendered in favor of the plaintiff with damages for $128.75 and that judgment by the court was pronounced upon such verdict.
Under Mansf. Dig. § 3352, it will be noticed that where the defendant gives a bond to retain possession of the lands and premises mentioned in the writ and declarations in the. cause, as provided by law, it shall be lawful for the plaintiff to introduce before the jury trying the main issue in the action, evidence showing the damage he may have sustained in being kept out of the possession of such lands and premises, and the jury, if they find the issue for the plaintiff shall at the same time assess what damages, if any, the plaintiff has sustained in being kept out of possession by the defendant, and the court shall render judgment restoring the property to the plaintiff, as now prescribed by law, and shall also render judgment against the defendant and *26his security on the bond for damages as found by the jury, as well as for costs of suit. Mansf. Dig. § 3351, reads as follows:
“When any person to whom any cause of action shall accrue under this act shall file in the office of the clerk of the Circuit Court of the county in which the offense shall be committed a complaint or statement in writing, signed by him, his agent or attorney specifying the lands, tenements or other possessions so forcibly entered and detained, or so unlawfully detained over, and by whom and when done, and shall also file the affidavit of himself or some other credible person for him, stating that the plaintiff is lawfully entitled to the possession of the lands, tenements or other possessions mentioned in the complaint, and that the defendant forcibly entered upon and detains the same, or unlawfully detains the same after lawful demand therefore made, such clerk shall issue a writ or possession directed to the sheriff, commanding him to cause (if the plaintiff give security according to law) the possession of the lands, tenements or other possessions in the complaint mentioned to be delivered to the plaintiff without delay, and to summon the defendant to appear in court on the return day of the writ and answer the plaintiff in the premises.” ,
In this action the plaintiff, appellee, wholly failed to comply with the demands of this section. He failed to file the affidavit required before the writ of possession could issue at all, and such writ of possession being issued by the clerk of court without the necessary affidavit, is absolutely nugatory and void.
Under Sec. 3352 of Mansf. Dig., plaintiff cannot recover damages except where the defendant has given a retaining bond. If the writ of possession issued on the behalf of plaintiff was nugatory and void and defendant by reason of such writ of possession, was induced to and thereby gave bond to retain posses*27sion, such bond was'without consideration and cannot be held to be voluntary, and plaintiff cannot recover damages, nor has the court power to enter up judgment upon the verdict of a jury finding such damage against the defendant and his bondsmen, upon a bond so obtained from them.
Before a defendant can be required to give bond at all to retain property in forcible entry and unlawful detainer, plaintiff in the action must have first fully complied with the statute in reference to taking possession of such property. In other words the right of a plaintiff to dispossess an unlawful detainer, depends iqion whether or not he has complied with the conditions prescribed in Mansf. Dig., § 3351 and 3352. Nor has the clerk of the court power to issue a writ of possession in such a case until plaintiff has filed the affidavit prescribed in Mansf. Dig., § 3351. And the judgment of the court upon the verdict allowing damages in this case was erroneous.
In this case all that was necessary for plaintiff was to show the relation of landlord and tenent between himself and the defendant, and that the term of tenancy had expired and that he had made written demand for ’the premises. The tenant could not be heard to dispute his landlords title. By his answer defendant admits that he went into possession of these premises under one Molly Ragland. By mesne conveyance plaintiffs acquired Molly Ragland's interest in the premises and defendant therefore became the tenant of .plaintiffs, and the contention of the appellant with reference to the illegality of transferring title of appellants lands in the Chickasaw nation by a person other than a Chickasaw or a Choctaw Indian cannot be heard in this-case.
We have examined the fifth assignment of error complaining of the instruction of the court, and have examined the *28.action of the court in refusing to give the special instruction •asked by the defendant. From the evidence in this case it ■seems that upon the passage of the Curtis Bill, acting upon what purported to be opinions of the United States Attorney of the Southern District in reference to the holdings of property, the .appellees, or their grantors, tore down their fences on part of the premises in controversy, and it being afterwards ascertained that these purported opinions were erroneous and misconceptions as to the Curtis Bill, appellees resumed, or attempted to resume, possession and control of such premises. It is contended by appellant that this action on the part of appellees and their grantors constituted an abandonment of the premises, but the trial court very properly, ás we think, took the contrary view, The possession of appellant was the possession of appellee, his .landlord, and if appellant held possession of these premises, whether the fences were lorn down or not, having been placed thereon by appellee and his grantors, and the evidence clearly shows this to be the fact, the instruction of the court, in its effect, ■states the law and was not prejudicial in any sense to the appellant.
Appellant does not urge the seventh and eighth assignments of error in his brief.
We have examined the ninth assignment of error, which reads as follows:
“Because the law and the evidence are insufficient to warrant the verdict of the jury.”
We think that both the law and the evidence are sufficient to warrant a verdict of the jury finding the plaintiff entitled to the possession of these premises. The jury were entitled to say from the evidence whether or not written notice had been served *29upon the defendant before the institution of the suit. Appellee swore positivelj’- that he served said notice by delivering the same-to appellant in person. Appellant admitted that he received some paper, the contents of which he did not read, and the jury were warranted in finding that such notice was properly served from this state of evidence. But the law did not warrant the finding of damages against appellant under the conditions-of the pleadings and record in this case and such parts of the-judgment as permitted damages to go against appellant and his sureties were erroneous and the court below should either have granted a new -trial on account of such error or have caused a remittitur to be entered of such damages.
The judgment of the court below is modified, and the judgment herein entered for appellee for possession of the premises and writ .of restitution hereby ordered. Insomuch as-appellant is entitled to modification of the judgment of the court below in this court, judgment is hereby given appellant and against appellees for their costs in this court.
Raymond, C. J., and Clayton, J., concur.