I concur fully in the majority opinion but would amplify the discussion in Division V, especially in view of the dissenting opinion of Justice Oliver.
There seems to be no difficulty in applying the language of section 12231, Code of Iowa, 1939, to permit an action of right by lessee. That section grants the remedy to "Any person havinga valid subsisting interest in real property, and a right to theimmediate possession thereof." We have squarely held that a leasehold is such an interest. Jensen v. Nolte, 233 Iowa 636,639, 10 N.W.2d 47.
Section 10655, Code of Iowa, 1939, excludes from the jurisdiction of municipal courts all actions "directly affecting the title to real estate." Appellants contend and the dissenting opinion holds that a leasehold is a title to real estate within the meaning of this Code section. This contention, if successful, would result in taking from the municipal courts all jurisdiction of actions under chapter 517 of the Code, usually referred to as actions of right. It proceeds on the theory that when the owner of land executes a lease he divides his title and conveys a part of it to the lessee.
The rival lessees here both claim under the same landlord, defendant Cora B. Baker. Her title is not in issue. If the action were between lessees claiming under landlords claiming adversely to each other the case would be different. In that event each lessee would be upholding the title of his own lessor and the action would be one affecting the title.
It is pertinent to point out that the common-law action of ejectment was used for the very purpose of trying the landlord's title, by the use of a fictitious demise to one in whose name the action would be brought. See 28 C.J.S., Ejectment, *Page 206 section 2. This was on the theory that plaintiff's right of possession was dependent on his landlord's title and plaintiff's success in the action would confirm that title.
Still earlier there were actions called "real actions for the recovery of the possession of lands." The result of those actions "was merely to restore claimant, if successful, to his former possession and decided nothing with respect to the ultimate right of recovery." The common-law action of ejectment succeeded the former real actions for the recovery of possession. 28 C.J.S., Ejectment, sections 1, 2.
In an earlier decision (1849), this court said:
"The `act to allow and regulate the action of right,' (Rev. Stat.,) 626, enlarges upon the common law writ of right. It supersedes the action of ejectment, (§ 20,) and furnishes within its ample provisions an adequate remedy for mere possessory rights, and also to establish actual seizin, or inheritance in lands." Kerr v. Leighton, 2 (G. Greene) Iowa 196, 198 et seq.
The statute then, as shown by the opinion, top of page 199, was the same as our present Code, 1939, section 12231, which provides that the action may be brought "against any person acting as owner, landlord, or tenant of the property claimed."
That decision clearly distinguishes between cases in which the remedy is invoked to enforce "mere possessory rights" and those brought "to establish actual seizin or inheritance in lands," that is, those that do not and those that do "affect the title."
In Sasse v. Sparkman, Mo., 53 S.W.2d 261, there was involved a controversy between the owners and one who claimed to be their tenant. The opinion of the Supreme Court of Missouri says:
"Appellant did not dispute respondents' title at the trial. Neither is the title of respondents challenged in appellant's brief on appeal.
"Title to real estate may be but is not necessarily involved in ejectment suits. The form of the action, in this case ejectment, does not of itself place the appellate jurisdiction in the *Page 207 Supreme Court. * * * Title to real estate must be directly involved in order to vest jurisdiction in this court. * * *
"In this case the title was, by the evidence, conceded to be in respondents. * * * Where in an ejectment suit the title is conceded to be in a plaintiff, and the controversy is over possession only, title is not involved."
See, also, Drew v. Platt, 329 Mo. 442, 44 S.W.2d 623, 52 S.W.2d 1041.
The dissenting opinion cites Ewert v. Robinson, 8 Cir., Okla., 289 F. 740, 35 A.L.R. 219, which quite thoroughly reviews the theory of ejectment and many authorities. That case involved a so-called oil-and-gas lease which has been said to create a freehold estate. 32 Am. Jur., Landlord and Tenant, section 16. Oil and gas in place are realty. See Elder v. Miller, Tex. Civ. App., 116 S.W.2d 1171, 1173; 22 Words and Phrases, Perm. Ed., 73. The Ewert case, 289 F. 751, refers to the "basic theory of the action" as laid down by Lord Mans field, in Taylor v. Horde, 1 Burr. 119.
"`An ejectment is a possessory remedy, and only competent where the lessor of the plaintiff may enter: * * * Every plaintiff in ejectment must shew a right of possession, as well as of property * * *.'" (Italics supplied.)
This refers to the same common-law action spoken of in Kerr v. Leighton, supra, as having been modified by our statute.
In the Nolte case, supra, we said a lease is a conveyance of a portion of the owner's interest. That is quite different from saying a portion of his title. Right of possession is, of course, an attribute of ownership or title, but it seems quite inaccurate to say that when he leases he divides his title and sells a part of it. Title surely cannot be so "divided." Under our law a leasehold is personalty. The owner can divide his title by conveying an estate for life, which is a freehold estate, and a part of the title. But he cannot do so merely by creating a leasehold which is personal property. I think when our statute, section 10655, uses the words "title to real estate" it means more than a mere temporary possessory interest.
In Drew v. Platt, supra, 329 Mo. 442, 444, 44 S.W.2d 623, 624, it was said: *Page 208
"We assume that the appeal was granted to this court on the theory that title to real estate is involved. `Is a leasehold for a term of years real estate? If so, the title to real estate is involved.'" The opinion then quotes from other cases and concludes: "* * * we hold that since the leasehold in controversy * * * is, as at common law, personal property, the judgment appealed from does not therefore involve title to real estate and we do not have jurisdiction of this appeal on that ground."
I think the instant case did not affect the title to real estate within the meaning of our statute.
MANTZ, C.J., and HALE and WENNERSTRUM, JJ., join in this special concurrence.