This was an action of forcible entry and detainer, which the counsel for the plaintiff has seemed to regard as an action of right, and has contended that the titles of the parties were to be inquired into as decisive of the question.
This position is wholly untenable. This is not the proper action for trying titles of any description. A person may render himself liable for a forcible entry and detainer by entering upon his own property even when he has the right to immediate possession. The first and second sections of the statute on this subject (Laws of 1838-9 page 217) in defining the nature of the offence for which this action may be brought make no allusion to any species of title. It is simply the manner of entering upon and holding the property, which creates the liability. It is only necessary for the complainant to show that he was actually in possession, and that the defendant either forcibly entered or forcibly detained possession or both, and his action will in all cases be sustained, whoever may have the title to the property or the right of possession tbereto.
There is another class of eases in which an action of the same form will be sustainable. These are defined in the eighth section of the statute above referred to, and consist of those cases where persons wil-fully and with force hold over contrary to the terms of their Jease. But neither in these cases can there be any trial of the right of property or of possession except merely by inquiring into the terms of the lease to ascertain whether there has been a holding over. The tenant is not *33permitted to dispute the title of his landlord. Almost the same rule in this respect prevails here therefore as in the cases first above mentioned.
In regard to the first class of- cases the -proceedings are in the nature of a penal action. The offending party may be punished by fine. The case at bar must fall within this class', for there is no pretence that the defendant was the tenant of the complainant, or of the United States-under whom she claimed. Under these circumstances it was incumbent on the complainant to show that she was in possession at the time-of the entry of which she complains. As she had never been .in .possession she will be driven to an action of a different form in order to vindicate her rights. Clark and those claiming .under him held the land at the time she acquired her title, and from that time till the commencement a this suit. She could not therefore Institute the action. They .claimed the right of possession, and this could not be inquired into in the action, of forcible entry and detainer, nor in that of forcible detainer' only*
These actions are intended as summary reniedies to restore possession which has been irregularly molested, or where there has been a holding over in flagrant violation of the terms of a lease; but can never be made a substitute for the action of right. The instructions and decisions of the court below were in perfect accordance with these views. The complainant was clearly unable to sustain this action, and the judgment of the District Court will therefore be-affirmed.