Pettis v. Jennings

Brayton, C. J. 1

This cause was tried at a special court of common pleas for this county. It was an action of ejectment to recover possession of a tenement holden by the defendant of the plaintiff as tenant from month to month. The first two counts aver the termination of the tenancy by notice in writing within the time prescribed by the statute for that purpose, and that the defendant held over. The third count avers that the defendant used the premises as a house of ill-fame, resorted to for the pur *73 poses of prostitution, whereby the tenancy terminated and the plaintiff became entitled to the possession.

The defendant’s exception relates to the third count only, and, for the purpose of considering it, we may assume that to be the only-count. Upon this assumption it will be difficult to maintain the exception.

The cause was tried by the court without a jury, the jury trial having been waived. The objection is, that the judge who heard the cause received parol evidence to prove the occupation of the premises in the manner alleged in the count, and the objection is made to rest upon the 7th section of chapter 216 of the Revised Statutes, which provides that where a lessee of a dwelling-house shall be convicted of keeping the same as a house of ill-fame, the lease shall become void at the option of the lessor, and the lessor shall have the like remedy to recover possession as against a tenant holding over after the expiration of his term ; and the defendant claims that by this provision jurisdiction is given to a special court only upon conviction, and a conviction must therefore from necessity be shown, to warrant any judgment against the tenant. Chapter 167, section 2, limited the jurisdiction of special courts over actions of ejectment to those brought against tenants holding over the term for which the tenement was hired, or where the tenants have broken the terms or conditions of their leases, or where they hold by forcible entry and detainer.

Section 7 of chapter 216 extends the jurisdiction of special courts to actions against tenants who shall have been convicted of using the tenement as a house of ill-fame. Were these the only statutes upon the subject, it might be claimed that a conviction was necessary to be proved to give jurisdiction, and to warrant any judgment for possession.

But by another act, chapter 332, the jurisdiction of special courts has been extended to all cases of ejectment against persons holding by wrongful entry or detainer.

The third count alleges such a case. That count is framed upon chapter 73, section 4, of the Revised Statutes, which provides that when any lessee or occupant of any building or tenement shall use the premises for any of the purposes mentioned in the first section of that chapter, such use shall annul the lease or other title under which he holds, and the right of possession shall revest *74 in the owner, and he may enter without process. The tenant, under this act, became a wrongful holder and detainer as a consequence of the unlawful use. The owner might have maintained his action for the possession, in the Court of Common Pleas, though not in a special court, before the enactment of chapter 332. He may now bring his action in either, and may support his action by proving the unlawful use by any competent evidence, whether by writing or parol, and whether the defendant shall have been first convicted or not.

It was no error in the judge to admit the parol evidence in this case, had it appeared here that such evidence determined the judgment, and this were the only count in the declaration. There are, however, other counts in the declaration upon which issue was made, and to none of the evidence upon them was there any objection, and it does not appear that judgment was not properly rendered upon these.

.Exceptions overruled. Judgment of court below confirmed with costs of this court.