
    L. D. Hyde, Appellant, v. Richard Fraher, Respondent.
    Kansas City Court of Appeals,
    April 11, 1887.
    Forcible Entry and Detainer — Object oe the Action — Case Adjudged. — In an action of forcible entry and detainer, the question is not, who is entitled to the possession of the premises; the object of the action is, to restore things to the state in which they were before the forcible entry was made. The gist of the action is the forcible entry, and the object is restitution to the one dispossessed. If a landlord, after the expiration of. a lease, forcibly enters upon premises still in the possession of his tenant, the latter can mamtain an action of forcible entry and detainer against the former. Meld, that the landlord, in this case, cannot maintain an action of forcible entry and detainer for the dispossession of his tenant during the term of his lease, after the expiration thereof. Where a tenant is turned out of possession, he alone, and not the landlord, can maintain an action of forcible entry and detainer.
    Appeal from the Chariton Circuit Court, Hon. Gr. D. Burgess, Judge.
    
      Affirmed.
    
    The case is stated in the opinion.
    A. W. Mullins, with O. P. Smith, Crawley & Bo n, and W. W. Rucker, for the appellant.
    I. The circuit court erred in sustaining the defendant's demurrer to the plaintiff' s evidence. The plaintiff acquired the actual possession of the land in question in the month of August or September, 1880, and had the same leased to tenants, who were in the actual possession under the lease as plaintiff’s tenants, when the defendant forcibly entered and took the possession. The term of the plaintiff’s tenants expired on March 1, 1883, and thereafter, on April 7, 1883, the plaintiff commenced this suit. The plaintiff’s tenants were entitled to the possession up to the end of the term specified in the lease, March 1, 1883, and, under the decisions of the supreme court of Missouri, the right of action as against the defendant, to regain possession, rested with the tenants up to the expiration of their lease. McCartney’s Adm’r n. Alder son, 49 Mo. 456; s. c., 45 Mo. 35; Reed n. Bell, 26 Mo. 216. But after the expiration, or surrender, of the tenants’ lease, the right of action accrued to, and was solely nested in, the plaintiff. May n. Luckett, 48 Mo. 472; McCartney’s Adm’r n. Alder son, supra.
    
    II. The instruction given by the court, which forced the non-suit, states the grounds upon which it was asked and given, that plaintiff’s tenants were in possession when defendant entered, and, therefore, upon that theory of the law, the defendant must i£ stand or fall” here. Walker n. Owen, 79 Mo. 563, 568; Holmes n. Braidwood, 82 Mo. 610 ; Whetstone n. Shaw, 70 Mo. 575 ; Nance n. Metcalf, 19 Mo. App. 183, 190 ; Loomis n. Railroad, 17 Mo. App. 340, 353.
    S. C. Major, S. P. Huston, R. W. Goldsby, for the respondent.
    I. TV here a forcible entry is made on a tenant’s possession, followed by a detainer, the tenant, and not the landlord, must sue. Burns n. Patrick, 27 Mo. 434; Reedn. Bell, 26 Mo. 216; McCartney’s Adm’r n. Alder son, 49 Mo. 456.
    II. If the tenant abandon the premises, or his lease expires, and he leaves the “premises, and after such abandonment a third party makes a forcible entry thereon, the landlord may sue for such forcible entry and detainer, because, whenever the tenant yields the possession, it immediately revests the actual possession in his landlord, and a forcible entry thereon is a forcible entry on the actual possession • of the landlord. Me
      
      Cartney's Adm'r n. Alder son, 49 Mo. 456; May v. Luckett, 48 Mo. 472.
    III. In order to give a party a right to maintain forcible entry and detainer there must have been an entry upon his actual, as distinguished from his constmoctvoe, possession. Armsburg v. Hendrick, 67 Mo. 542.
    IV. The action in this case is an action of forcible entry and detainer, and our contention is, that the landlord's remedy, ivhere a forcible entry has been made on his tenant, is under the second clause of Revised Statutes, 1879, section 2420, for a disseizin, without force, as to him, and this form of action requires a written demand. Hyde v. Qoldsby, ante, p. 29, and cases there cited.
   Hall, J.

This was an action of forcible entry and detainer. The plaintiff’s tenant was, under his. lease, in possession of the premises at the time of the alleged forcible entry. After the expiration of the term of the lease the defendant, being still in possession of the premises, the plaintiff brought this action of forcible entry and detainer,

The single question is presented in this case, can a landlord maintain an action of forcible entry and detainer for the dispossession of his tenant during the term of the lease, after the expiration thereof ? The circuit court held that the landlord could not maintain such action.

Where a tenant is turned out of possession, he alone, and not the landlord, can maintain an action of forcible entry and detainer. Bennett v. Montgomery, 3 Halls (N. J.) 48; Commonwealth v. Bigelow, 3 Pick. 31; Polack v. Shafer, 46 Cal. 270 ; Burns v. Patrick, 27 Mo. 434. In none of the cases cited does it appear whether or not the term of the lease had expired at the time of' the institution of the action. Had those cases been decided on the ground that the leases had terminated at the time of the institution of the actions, that essential fact would, no doubt, have been noticed. But in an action of this kind the question is not, who is entitled to the possession of the premises? The object of the action is, to restore things to the state in which they were before the forcible entry was committed. The gist of the action is the forcible entry ; the object of the action is restitution to the one dispossessed. The tenant, not the landlord, is entitled to the immediate profits of the land.

That the termination of the lease has no bearing on this question is made clear by the further consideration that, if the landlord, after the expiration of the lease, forcibly enters upon the premises still in the possession of the tenant, the latter can maintain an action of forcible entry and detainer against the former. Krevet v. Meyer, 24 Mo. 107. And, of course, the tenant could also maintain such action against a stranger for a forcible entry made after the expiration of the lease, if the premises were, at the time of the forcible entry, in the tenant’s possession. If the tenant can maintain an action for a forcible entry committed after the expiration of the term of the lease, how can it be held that the expiration of the term of the lease terminates the right of the tenant to maintain an action for a forcible entry committed during the term of the lease, and gives such right to the landlord ?

The judgment is affirmed.

Ellison, J., concurs; Philips, P. J., absent.  