(dissenting). I am of the view that the judgment should be reversed because it is not sustained by any evidence.
Introduced in evidence were the proceedings before the justice of the peace and the testimony of the plaintiff. Such proceedings included the verified complaint, which averred generally an unlawful withholding of possession after peaceable entry; a thirty-day notice to terminate a tenancy, therein stated to be from month to month, with return of service thereon; notice to quit and return of service; and certificate of Rent Director in Office of Price Administration of U. S. A., authorizing the eviction if entitled thereto under state law. The testimony of the plaintiff was solely to the effect that he was owner of the property, that he had been evicted from other premises which he occupied as tenant, and purchased this property in order to provide a home for his family which included his wife and two children. There was no evidence of the fact of a tenancy or of the ownership or possession under which the entry of defendants was made. Nor does the testimony of the plaintiff reflect from whom the purchase of the premises was made. And it appears that reliance is placed upon the fact of ownership at the time of giving the notice to terminate the tenancy as sufficient.
Right of possession, alone, is not sufficient to state a case against one in possession with color of right, because the right to proceed against such in a detainer action must be predicated upon a prior possession. In Clark et al. v. Keith, 86 Okla. 156, 207 P. 87, we held:
*507“The right to maintain an action for the unlawful detention of real property is not determined by the plaintiff’s right of possession, but by whether he has been in possession and such possession has been taken from him by force, or having been obtained from him peaceably, is unlawfully withheld.”
See, also, Wilson v. Davis, 182 Okla. 435, 78 P. 2d 279.
It follows that a purchaser of the property who has not had prior possession has no right to maintain the action against a tenant in possession unless the latter entered as or has lawfully become his tenant. This would occur if the purchase was from the tenant’s landlord.
The question at issue herein, regardless of the actual condition of the title to the premises, is whether the defendants unlawfully withhold possession from the plaintiff. Turnbaugh v. Husselton, 72 Okla. 247, 180 P. 368. That the title in one does not negative the fact of a lawful possession in another is reflected where the relation of landlord and tenant obtains. And the statutory notice to terminate the tenancy is effective to render the continued possession thereafter unlawful only in event of an existing tenancy to which the notice is applicable. Where there is a tenancy and one purchases the premises from the landlord under whom the tenant holds, the purchaser succeeds to the right of the landlord and thereby becomes entitled to proceed against the tenant. Showalter v. Ryles, 22 Okla. 329, 97 P. 569. Herein there is nothing concerning the tenancy other than the recitals in the thirty-day notice. The fact that such notice was introduced does not make such recitals evidence of the fact of the tenancy. On the contrary, the efficacy of the notice is dependent upon proof of the truth of such recitals.
There being proof neither of the tenancy nor that the plaintiff succeeded to the rights of the landlord if a tenancy existed, it cannot be said the judgment is supported by the evidence.
I therefore respectfully dissent.