
    Jane Settle vs. Joab Henson.
    Forcible entry and detainer is not the proper action for trying titles of any description. It is simply the manner of entering upon and holding the property which creates the liability.
    Or where persons wilfully and with force hold over contrary to the terms of their lease.
    This action is intended as a summary remedy 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 cannot be-made a substitute for the action of right.
    Action of forcible detainer. The defendant pleads not guilty and justifies his detainer by a title of occupancy. The jury find the defendant not guilty and the plaintiff filed his bill of exceptions setting forth that the plaintiff proved that-at the time of the institution of the suit the defendant was in the possession of the land mentioned and had been duly notified to quit: and also proved from the Receiver’s receipt of the land office at Burlington, that the plaintiff purchased the land in dispute from the Government of the United States.before the institution of the suit. The defendant proved that at the time of the purchase of the land by the plaintiff one James Clark had the possession of it, and that defendant assigned as a reason for not quitting possession when notified st> to do, that he had hired the same of said J ames Clark.
    
      July, 1841.
    Therefore the court instructed the jury that the entry upon and occupancy by any person of the unsold > lands of the United States did not make such occupant guilty of forcible detainer in an aetion by the subsequent purchaser of the said land from the United States. And that the purchase of said land by any person from the United States subsequently to the entry and occupancy as aforesaid would not authorise 6Úch subsequent purchaser to maintain his action of forcible detainer against such previous occupant. And that if the jury should believe from the evidence that defendant had rented the land of said James Clark, and that Clark was in possession previous to and at the time of such purchase by the plaintiff that they must find for the defendant and that the plaintiff must resort to his action of right to obtain possession. To which the plaintiff excepts, &c.
    Browning for plaintiff in error.
    Any person who enters upon and occupies the public lands of the United States is by law of Congress a trespasser: and no la\y of the settlers or act of the Territorial legislature could contravene that law. And such trespasser cannot maintain possession against a purchaser from the United States. Clark had no right and could not transfer any to any other person. A person who is wrongfully kept out of possession of his land may have his action of forcible detainer. The action of right and that of forcible detainer are sometimes concurrent remedies.
    Roana for the defendant
    insists that in this case in the District Court the same cardinal principles of law must govern the court as are prescribed in like cases before Justices of the Peace, and thefefoxe'the title to the land in question could not be inquired into. See Organic Law, where it is laid down that Justices of the Peace shall not take jurisdiction of any matters where the title or boundary of land shall come in question. Iowa Laws, p. 35.
    
      Second. If this construction be nor correct there could be no safety in litigation, which would seem rather to ensnare suitors than to promote justice, as the party succeeding by the law of the inferior tribunal would be liable to be defeated by the different operation of the law of the superior or appellate authority. The District Court will look into the case as it stood before the justice and adjudicate as if being tried there.
    
      Third. In the action of forcible entry, and forcible entry and detainer, or for holding over, the title to the premises never comes in question: but the question is one of possession only. And in this case the only possession was in the defendant (as appears by the bill of exceptions) and his lessor James Clark. See Hawk. Pleas of the Crown 152, and Hen. Justice 262, where it is said “it is not the title but possession only which is material in this cause.” And in Jacob, title “ forcible entry and detainer” it is said “the Justices of the Peace are not to inquire into the title of either party. ” And again same authority, for a forcible de-tainer only, it is said “there is no restitution, the plaintiff never having been in possession. ”
    As to the plea of occupancy it is preceded by that of not guilty, and though the defendant may have no title he is not eonfined alone to that plea, but may under the other, as he has done, show that he has not intruded or rendered himself culpable.
    There is no evidence how Henson came on to the land; but we are willing to suppose that he entered without right. In cases of forcible detainer at common law the only question is possession. There must have been previous possession and forcible ouster. They could not maintain this action unless it appeared that Clark the assignor of Henson had gone on by consent of Government. There must be a privity of interest between the plaintiff and defendant in order to maintain this action.
    Browning, iji reply. The bill of exceptions shows that he entered upon the lands of the United States. It is true a Justice of the Peace can not inquire into the title to land. This being the land of the United States, the question is could any one acquire a right of possession by entering upon and occupying the same. The whole turns upon the laws of the United States. If he had no right he could not transfer any to another person.
   BY THE COURT.

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 permitted 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.  