I agree with Mr. Justice BICKLEY that our statute before and after the amendment of 1889 did not require prior actual possession of the plaintiff as a condition precedent to maintaining the action; and since that amendment the action may be maintained against one who enters into and occupies the premises of another "against the will or consent of the owner, or owners, thereof," after due notice to vacate whether or not the owner was in actual possession. But aside from this, it is my opinion that the complaint stated a cause of action.
There are two insuperable obstacles that preclude the use of the statutory form in question, in cases of unlawful detainer; (1) The statute provides only that it shall be used in cases of "forcible entries and detainers," and (2) the form itself (which must be verified by affidavit) contains allegations of fact totally inconsistent with actions of unlawful detainer; for instance to recover from a tenant who has held over after the expiration of the term.
The original forcible entry and unlawful detainer statute was passed in 1876 (Ch. 27 N.M.L. 1876), and in the same act (now Sec. 38-1101 N.M.Sts. 1941 as amended) a form of complaint was prescribed, but it is *Page 144 obsolete since the amendment of 1889. The original statutes were as follows:
"Sec. 101. That an action for forcible entry or unlawful detainer of real property may be prosecuted before any justice of the peace in the township where the property is situated, in the following cases:
"1st. When the defendant has by force, intimidation, fraud or stealth, entered upon the land and tenements of another and detains the same.
"2nd. When a lessee, or tenant holds over after the termination or contrary to the terms of his lease or tenancy.
"3rd. When the tenant fails to pay the rent at the time stipulated for payment.
"4th. When the defendant continues in possession after a sale by foreclosure of mortgage on execution, unless he claims by a title paramount to the mortgage by virtue of which the sale was made, or by title derived from the purchaser at the sale."
"Sec. 124. The following forms are prescribed for the use of justices of the peace in the actions mentioned, and shall be used by them in all such cases (Emphasis mine)
"In Forcible Entries and Detainers "Complaint "A.B. | V. | C.D. | Before E.F., justice of the peace in and for ____ precinct, number ____ in ____ county.
"A.B., plaintiff in the above entitled cause, complains and says, that heretofore, to wit: On the ____ day of ____ A.D. 19__ at the county of ____, he was lawfully possessed (or lawfully entitled to the possession) of a certain tract of land, (or a certain tenement, etc), situated in said county, known, designated and described as follows: (here describe the land or tenement with reasonable certainty), and being so thereof lawfully possessed (or lawfully entitled to possession), as aforesaid; the said defendant, C.D., on the day and year, and at the county aforesaid, unlawfully and with force (according to the facts), entered into and upon the said tract or parcel of land (or tenements), and detained and held the possession thereof, and such, (still) detains and holds the possession thereof against the plaintiff. Wherefore the said plaintiff says that the said defendant is guilty of forcible entry and detainer, contrary to the form of the statute in such case made and provided.
"(Signed) A.B."
The majority state: "It seems perfectly obvious from a reading of the prescribed form (1941 Comp., § 38-1101), enacted as section 124 of L. 1875-76, c. 22, authorizing forcible entry and detainer actions, that it was adaptable either to forcible entry and detainer or unlawful detainer as the facts might warrant. The form first prescribes the allegation that plaintiff is `lawfully possessed' (for forcible entry), followed immediately by the parenthetical *Page 145 language, `or lawfully entitled to the possession.'"
Then there follows an apparent attempt to apply the form to cases of unlawful detainer, but in fact showing that a totally different form must be used, thus disproving the basic theory resorted to for the affirmance of this case.
The phrase in parentheses "(according to the facts)" could have reference only to the manner in which the defendant "unlawfully and with force entered into and upon the land." There is nothing else to which it could refer. The imaginary intent of the legislature suggested cannot be resorted to for the construction of a perfectly unambiguous statute.
As stated, since the amendment of 1889 the form is obsolete and many of the allegations of facts originally required need not now be proved. The form requires the pleader in every case to state that the defendant "unlawfully and with force * * * entered into and upon" the land and detained and held possession thereof. These facts are foreign to unlawful detainer cases, as is the prayer for relief; "Wherefore the said plaintiff says that the said defendant is guilty of forcible entry and detainer." There is no provision for a departure from this form, and "the complaint of the plaintiff must be made upon oath." Sec. 38-905, N.M.Sts. 1941.
I need not enter into a discussion as to whether a forcible entry is in itself a cause of action. It is not a statutory action; only an action based upon entry and detention is provided for by the first paragraph of Sec. 38-901, N.M.Sts. 1941; and that action is "forcible entry and detainer."
The actions for which forms of complaint were prescribed in the statute mentioned, are forcible entries and detainers, attachment and replevin. No statutory form was prescribed for use in cases of unlawful detainer.
The only possible construction of the phrase therein, "he was lawfully possessed (or lawfully entitled to the possession)" is that it prescribes alternative allegations, either of which may be used in actions of forcible entry and detainer. Either is consistent with the facts that must be proved in such action, even assuming that actual possession is a condition precedent to the right of action.
The inconsistency in the form, if any, upon which the majority rest their conclusion is trivial compared with those to which I have referred, that oppose any such construction. The complaint is sufficient, and the cause should be reversed. *Page 146