
    Case 54 — FORCIBLE ENTRY —
    January 28.
    Haupt v. Pittaluga.
    APPEAL PROM JEPPERSON COURT OP COMMON PLEAS.
    1. Possession restored by tub delivery op the rey op the house.— Possession being formally and actually abandoned, and tbe key of the house delivered by a subtenant to the tenant under whom he held, it was only necessary, in order to repossess the tenant to whom the key was so delivered, that he should clearly manifest the immediate intention of resuming the possession and control of the premises.
    The subtenant, after delivering Uie key of the house as above, borrowed it again, and instead of returning it to the tenant delivered it to the landlord, who immediately took possession. The tenant under his writ of forcible entry was entitled to a judgment for possession against the landlord.
    Isaac E. Greene,........For Appellant,
    CITED
    8 Marshall, 347, Chiles v. Stephens.
    S. S. English,..........For Appellee,
    CITED
    Civil Code, section 500.
   JUDGE HARDIN

delivered the opinion op the court.

The appellant, being the assignee and holder of a lease from the appellee for a term of five years, to expire in October, 1864, of a house and lot in the city of Louisville, subleased the premises to Joseph Burge in December. 1867, and the appellee shortly thereafter proceeded to dispossess Burge by a writ of forcible detainer, upon which an inquisition was found for the plaintiff, which Burge traversed; and, pending this litigation, Burge entered into an agreement with the appellant, from whom he acquired the possession, to restore the same to him; the appellant on his part releasing Burge from liability for rent, and undertaking to defend said suit, and indemnify Burge against damages in consequence thereof; and Burge, having then removed from- the leased premises, delivered the key of the house to the appellant, as appears from the evidence, for the purpose of relinquishing to him the entire possession of the premises; but almost immediately afterward he obtained the loan of the key for the professed purpose of removing' a barrel he had left in the house, promising to return the key on the same day, but instead of doing so he furnished the key to the appellee, who forthwith took possession of the premises.

The appellant, claiming to have been in the possession in fact when the appellee entered, proceeded against him by a writ of forcible entry, on which an inquisition was found for the plaintiff, which was traversed by the defendant, and. on a trial of the traverse, upon a submission of the law and facts to the court, the inquisition was adjudged to be untrue, and from that judgment this appeal is prosecuted.

As possession in fact was essential to a light of recovery in the appellant, the only question to be decided is, whether the facts we have recited were sufficient to transfer the possession from Burge to the appellant; and we are of the opinion that they were. The possession being formally and actually abandoned by Burge, and the unexpired lease restored to the appellant, it was only necessary in order to repossess the latter that he should clearly manifest the immediate intention of resuming the possession and control of the premises. (Brumfield v. Reynolds, 4 Bibb, S88.) This he seems to have done, not only by accepting the agreement in writing to surrender the possession to him, but also by receiving from Burge the key of the house. "Whether, notwithstanding these facts, the appellee might not have lawfully entered on the premises without force, if the lease had then expired under'which the appellant claimed, is a question we need not decide in this case; but entering, as he seems to have done, without right of possession, and against the will of the holder of his lease, to whom the subtenant had surrendered the premises, the judgment in his favor seems not to be sustained by the evidence.

"Wherefore the judgment is reversed, and the cause remanded for a new trial and further proceedings not inconsistent with this opinion.  