Carlisle v. McCall

Daly, J. —

The foundation for this proceeding was the demif® from the plaintiff to Mrs. Markey, and unless the evidence will support a finding, on the part of the justice, that the defendants’ possession was under that demise, the judgment was erroneous! As the defendants entered while Mrs. Markey was in possession and before the expiration of the month for which she had paid rent, the legal presumption might be that they remained in possession after she left, as her assignee. But that presumption 'is destroyed by her positive statement that she never gave thexni, permission to come in, or sold or assigned her lease to them 9 that she did not want to stay in the premises, and that they • came in as she was moving out, claiming that the place was theirs; that she did not forbid them from coming in, because she thought that she had no right to forbid their coming into their own house. The entry and possession of the defendants, therefore, was under a claim of title hostile to the plaintiff, and not under or by virtue of his demise. As Mrs. Markey was leaving, they entered, claiming that the premises were theirs, When they entered, she had the right to the possession until the expiration of the month; and, as between her and the landlord, he had the right to possession after that time, as she gave up the premises. As the defendants claimed that the premises were theirs when they entered, that claim was as hostile to the right of possession she had under the demise as it was hostile to any claim the plaintiff might have thereafter ; nor did ber acquiescing in their right to enter and take possession make it the less so, or render them ber assignee. The nature of their entry admitted neither title in her nor in her landlord, but was a claim of title and a right of possession not derived from, growing out of, or ñowing from the demise by the plaintiff to her. Upon this evidence, the justice could not assume that ¡ the relation of landlord and tenant subsisted between the defendants and the plaintiff; and, if it did not, there was no foundation for the proceeding. If they were intruders, holding the possession without right, the only remedy of the plaintiff was by an action of ejectment, the entry of the Ídefendants not having been accompanied by any force to war-ant the institution of proceedings for forcible entry and detainer

The judgment should be set aside.