The Opinion of the Court was delivered by
Purple, J.The defendant in this Court, who was plaintiff below, brought an action of forcible entry and detainer against the plaintiffs in error, before a justice of the peace of Jo Daviess county.
The complaint states, that Gautier, on the 1st day of March, 1842, was lawfully entitled to the peaceable, sole, and exclusive possession of a certain tract of land containing 160 acres, (describing it,) and that on the same day, and while the said Gautier was so entitled to such possession, the plaintiffs unlawfully,, and without any right of possession, entered upon and took possession of a part of the land outside of defendant’s fence, and within the surveyed lines of the quarter section, and detained the possession of the said part from the said defendant, and continued to do so; whereby the said plaintiffs were guilty of a forcible entry and detainer, &c.
Upon the trial of the cause before the justice, and also in the Circuit Court, there were verdicts and judgments in favor of the plaintiff below.
Among other things, it is assigned for error here, that the complaint is defective, and does not show jurisdiction in the justice before whom the action was instituted. This is the only point presented which it is necessary to decide.
The action of forcible entry and detainer may now be maintained in this State in four cases:
First. Where there has been a wrongful or illegal entry upon the possession of another;
Second. Where there has been a forcible entry upon such possession;
Third. Where' any person may be settled upon the public lands within this State, when the same have not been sold by the General Government; in the absence of paper title, for the purposes of this action, his possession will extend, according to the "custom of themeighborhood, to the number of acres embraced by his claim, not exceeding 160 acres pf surveyed, or 320 acres of unsurveyed land; and
Fourth. Where there has been a wrongful holding over by a tenant after the expiration of the time for which the premises may have beeri-let to him.
In the three first classes of cases above irieritioned we understand, thatbefore this action can be maintained there must be an illegal or forcible entry upon the - actual, or, as in the case of a settlement upon public lands, constructive possession of another; and that it is not sufficient to charge in the complaint, that the complainant’s right to the possession only was invaded by .the forcible or illegal entry.
If the complaining party has actual possession with or without title, Or such a claim to public lands as is' recognized by our statutes, he can maintain this action against any one'illegally or forcibly intruding into such possession.
In either of the cases mentioned, the complaint shotild clearly show the foundation of the- right which is sought to be' enforced, and that the wrongful or illegal eptry was made upon such actual or constructive possession of the plaintiff, or, the existence of the relation of landlord and- tenant and a wrongful holding over.-
This complaint does not come within any of these rules. It only shows that the defendant in error was entitled to the possession, and ¿hat the plaintiffs entered forcibly and kept him out.' ’ . ‘
Neither the justice of the peace nor the Circuit.Court had jurisdiction of the subject matter of the complaint. , .
The judgment of the Circuit Court is reversed with cost?.
Judgment reversed.