
    Robert Rabe vs. Jared D. Fyler.
    The special court of justices established by the statute for the trials of forcible entry and unlawful detainer, is under the power conferred, by the constitution, on the legislature to establish such inferior courts as might be deemed necessary, a constitutional tribunal.
    Objections not made in the court below will not be heard in the high court of errors and appeals ; and defects not pointed out by adverse counsel at the trial below, will be considered as having been waived.
    R. being the tenant of a bank, the latter conveyed by deed the premises occupied by R. to F. and H. as trustees ; R. refusing to deliver the premises to F., one of the trustees; at the expiration of his tenancy, F. brought an action individually for an unlawful detainer against R. ; and on the trial, read the deed from the bank to H. and himself, by which the property was conveyed to F. and H. in joint tenancy as trustees : Held, that the right of possession being one of the points in controversy in this proceeding, the deed was properly admitted in evidence to enable the jury to determine that right.
    One joint tenant of property may, in his own name, maintain the action of unlawful detainer against one in possession of the property; in such action the question of title is not involved, but merely that of possession; and the possession of one joint tenant being in contemplation of law the possession of both, a recovery by one in this action would enure to the benefit of both ; and the pendency of the action by one, or the judgment in his favor, might be pleaded to a proceeding by the other for the same cause
    On the trial of an unlawful detainer by F. against R., the plaintiff asked the court to instruct the jury that if they believed that R. was tenant of B., and B. assigned the premises to F. and H. with authority to collect the rent, and F. gave R. notice of this assignment and authority, and he made no objection, the jury have a right to find that R. was tenant of F.: Held, that the instruction was properly given.
    In an action of unlawful detainer it is not necessary, if the defendant has disclaimed the relation of tenant, for the landlord to prove any demand of possession before suit brought; a disclaimer is equivalent to a demand and refusal.
    Nor, it seems, will the defendant in such action, who has by his plea denied the plaintiff’s right and litigated his claim, be permitted to object the want of a demand ; yet if no demand of possession were made before action brought, and the defendant had, when demand was made by the suit, offered to deliver up possession when the suit was served, or when the plea was filed, he might have been entitled to his costs.
    It was in proof, in an action of unlawful detainer, that the defendant was the tenant of one B., who had assigned the property to the plaintiff, and that the plaintiff had informed the defendant of the transfer, and that he must pay rent to him as his landlord, to which the defendant did not object: Held, that before the defendant could rely upon the statute of limitations of three years, it was incumbent on him to show when, if ever, his possession assumed an adversary character, as the statute would only commence running from that period.
    In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.
    On the 26th March, 1845, Jared D. Fyler made complaint before a justice of the peace, that “ Robert Rabe, unlawfully and against his consent, withheld from him the possession of a lot of land, with livery stable and dwelling-house thereon, with appurtenances (describing them,)” and thereupon the justice issued a warrant against Rabe, to answer the complaint, returnable before the justices of the county at the court-house. The complaint was tried before a court composed of three of the justices; the jury there impanelled found in favor of Fyler; Rabe appealed to the circuit court of Adams county; where the following issue was made, to wit: “ Jared D. Fyler, by attorney, complains that Robert Rabe unlawfully and against his consent withholds from him the possession of a lot, &c., (described in the warrant) whereof he prays restitution,” &c. to which Rabe replied, — “ Defendant says he does not detain, as alleged above, and this he prays may be inquired of by the country.” At the November term, 1846, of the circuit court, a trial was had, and verdict and judgment again rendered for Fyler; Rabe moved for a new trial on these grounds: I st, “ because the verdict of the jury and the judgment is against law and the evidence in the cause: 2d, the court erred in the instructions given to the jury on the application of the plaintiff: 3d, the court erred in permitting illegal evidence to be given to the jury on behalf of the plaintiff.” The court overruled the motion, Rabe excepted, and from the bill of exceptions these facts appear: The plaintiff proved hy reading deed from one Patterson, as trustee, and by other testimony, that the premises in controversy were sold at public auction on Monday, the 22d day of March, 1841, under this deed of trust, to the Agricultural Bank of Mississippi for $11,263, and were delivered into possession of the bank by the defendant on the 29th March, 1841, and Rabe agreed to hold the same as tenant of the bank. Fyler then offered to read a deed, from the record book of deeds, from the Agricultural Bank to Jared D. Fyler, the plaintiff, and Thomas Henderson, as trustees, dated the 24th day of August, 1842, which embraced the property in controversy, and which recited in substance that, whereas, the bank was indebted to James Brown, of the firm of Brown, Brothers and Co., and also to other persons in the mode and. to the extent pointed out in the deed, to secure their respective debts, and for other purposes recited in the deed, the bank “ granted, bargained, sold, conveyed and confirmed, and by these presents do grant, bargain, sell, convey and confirm unto Jared D. Fyler and Thomas Henderson, of the city of Natchez,” a large amount of- property, including that in controversy in this case. “ Together with all and singular the appurtenances, hereditaments, privileges and advantages, unto the aforesaid premises and every parcel thereof appertaining or in any wise belonging, and also all the estate, right, title, interest, property, claim, and demand whatsoever, either at law or in equity of them, the said parties of the first part, of, in and to the same. To have and to hold the above granted, bargained and described premises yvith the appurtenances unto the said parties of the second part, their successors and assigns forever: In trust, however, and to and for the uses and purposes following, viz.: 1st. That the said parties of the second part shall and may let and rent the real estate hereinbe-fore conveyed or intended to be so; also collect and receive the rents, issues, and profits of said property, and every portion hereof, as well the rents now due and unpaid, as those to become due.” The deed proceeded to enumerate thirteen special trusts, conferred on Fyler and Henderson, including the power of sale among other things in certain contingencies. Rabe objected to this deed; the record does not show for what reason; the objection was overruled. Solomon Scott, a witness for Fyler, stated that Fyler was the acting trustee under the deed from the bank; that he (witness) had become a clerk of the Agricultural Bank in June, 1844. As clerk of the bank, he had carried to the credit of Fyler, as trustee, a sum of $200 paid into bank by one Robertson for the defendant Rabe, which was paid before he entered the bank (as appeared from the books of the bank) on account of rent of the premises in question. The payinent was made after the deed from the bank to Henderson and Fyler, but he did not know of any authority to Robertson, or why he paid it. He further stated that after the deed from the bank to Fyler and Henderson, this witness, as agent for Fyler, called upon Rabe at the stables, the premises in question, and told him of the conveyance to Fyler, and that Fyler was his landlord, and that he must pay the rent to him; that Rabe made no objection. Afterwards he wrote notes to Rabe, and called upon him for the rent for Fyler, and as Rabe refused to pay and denied the right of Fyler to claim and collect the rent, this action was brought. On cross-examination, he stated that Rabe had paid no rent to him for the premises, nor could he say that he had ever promised to pay any, nor had he answered his notes. McCullough, a witness for plaintiff, stated on cross-examination, that Rabe was the occupant of the stables, for some years before he held of the bank; that the only possession that he had any knowledge of Rabe’s taking under the bank was his agreement to hold the premises as tenant of the bank; this was all the testimony on either side. The plaintiff then moved the court to instruct the jury as follows, to wit: “ If the jury believe, from the testimony, that Rabe was the tenant of the bank, and the bank assigned the premises to Fyler and Henderson with authority to collect the rent, and Fyler gave Rabe notice of this assignment and authority, and he made no objection, the jury have a right to find that Rabe was tenant of Fyler,” which instruction the court gave as asked, and the defendant prosecuted this writ of error.
    
      Sanders and Price, for plaintiff in error.
    1. The circuit court had no jurisdiction of the case, if the justices’ court had not. The constitution of this state limits the jurisdiction of justices of the peace to causes in which the principal of the amount in controversy shall not exceed fifty dollars. Art. 4, § 23, Const. The judicial power of this state is vested in one high court of errors and appeals, and such other courts of law and equity as are provided for in the constitution. There is not any court therein provided for composed of justices of the peace, save only as to their civil jurisdiction where the principal in controversy does not exceed fifty dollars. Carmichael v. Davis, W alk. Rep. 222.
    2. The deed from the bank to Henderson and Fyler could not be read as evidence to the jury; 1, because the question of title was not in controversy; it was of a mere right of possession, where there was no dispute about boundary; 2, the deed was one to which Rabe was neither party nor privy; 3, the deed itself was not proven, the absence of the original not accounted for by affidavit or otherwise; 4, the deed does not empower Fyler and Henderson to sue for the possession of the property; it is only a power, without being coupled with any interest, to collect the rents, and to sell in certain contingencies, and to appropriate the proceeds to pay certain debts, if not otherwise paid.
    3. The instruction was improperly given; because there is no evidence that Rabe ever in any manner recognized Fyler as his landlord, or himself as his tenant; 2, the contrary is expressly shown, that he was the tenant of the bank, and therefore could 'not in law attorn; 3, an assignment to collect rent does not change the tenure; 4, a tenancy cannot he attorned by silence, it requires action — a substantial movement, by an express agreement to deny his landlord, and to recognize or hold under another.
    4. It was not shown anywhere that Rabe ever refused to give possession, or that any demand thereof was ever made of the premises in controversy; a refusal to pay rent is not a refusal to yield possession, nor is the denial of the right of a party to collect rent a refusal to give possession.
    5. It is shown, by the evidence of McCullough, that Rabe had been in possession prior to the purchase by the bank and ever since, which is far beyond three years, the time allowed for suing out this remedy; the suit was therefore barred by the statute of limitations.
    6. If Fyler had the right of possession, it was a joint one with Henderson, and one joint tenant cannot maintain the action.
    
      Eustis, for defendant in error.
    1. The reading of the deed from the bank to Fyler and Henderson was proper and competent as part of the proof of right of possession; it carries a right of occupancy, without raising any question of title, if the occupancy was previously in the bank.
    2. The charge given on the part of the plaintiff was correct. The Yirginia statute is like ours. The case of Allen v. Gibson, 4 Rand. 468, decides expressly that “ one tenant in common may have his remedy for the whole land against any party having no right whatever without joining his co-tenant.”
   Mr. Justice Clayton

delivered the opinion of the court.

This was a proceeding originally tried before two justices of the peace for an unlawful detainer. A verdict and judgment were rendered for the plaintiff, and on appeal to the circuit court, there was a similar result.

We will proceed to consider the several objections urged in argument to this judgment.

First, it is insisted the trial before the justices was unconstitutional. The right of the legislature to establish such inferior courts as might be deemed necessary, has been more than once upheld by this court. See Thomas v. The State, 5 How. 20; Houston v. Royston, 7 How. 543. The same rule is applicable to this specially-created tribunal.

The next objection is to the reading of the deed from the bank to Henderson and Fyler. No specific objection was made to the deed in the court below, and no defect pointed out. It is now said, it should be excluded, because a copy from the probate court office was read without accounting for the absence of the original. This court has laid down the rule in very strong terms, that unless the objection to testimony be specific in the court below, it shall not, with very few exceptions, prevail in this court. Doe v. Natchez Ins. Co. 8 S. & M. 205. Many defects might be at once removed, if they were pointed out at the trial, and the party will be considered to have waived -all such if he does not make them known. It is farther said, that as the title to the property was not in dispute, in this proceeding, the deed should, for that reason, have been excluded. One of the issues submitted was, whether the plaintiff had the right of possession. The deed was proper to enable the jury to determine that right. Again, it is said, the deed was to Fyler and Henderson jointly, and could at most be evidence in a joint proceeding by them. The deed made them as trustees joint tenants of the property. The possession of one was the possession of both, in contemplation of law. Adams on Eject. 100; James and wife v. Rowan, 6 S. & M. 402. Hence a recovery in this form of action by one, would enure to the benefit of both, and the pendency of the judgment might be pleaded to a proceeding by the other for the same cause. The deed is not the foundation of the action, but is mere evidence of the right of possession, title not being involved in the controversy.

The charge of the court was, in our view, free from error. If Rabe, when informed of the conveyance to Fyler, that Fyler was his landlord, and that he was to pay the rent to him, made no objection, the jury was authorized to infer that he thence became the tenant of Fyler, as he had previously been of the bank, 'which conveyed to Fyler.

In regard to the objection, that no demand of possession was made before suit brought, none was necessary. A disclaimer is equivalent to a demand and refusal. The suit was a demand; if Rabe had offered to deliver up possession when the writ was served, or when the plea was filed, he might have been entitled to his costs, if no previous demand was made. The plea was a denial of the plaintiff’s right, and amounted to a refusal; and after litigating the matter, he cannot now object the want of demand.

As to the statute of limitations of three years, it is not shown when the possession became adverse. Rabe was clearly the tenant of the bank; when informed of the transfer of the property to Fyler, and that he must pay rent to him as his landlord, he did not object. The possession at that time was not adverse. It was incumbent on him to show when, if ever, the holding assumed an adversary character, the statute would only commence running from that period. Having failed to do this, the finding of the jury was correct, and the judgment is affirmed.  