Tibbetts v. Morris

i statute of use'fma'^oceupaiion. I. Appellants claim that this action does not fall under the provisions of sub-division 4, section 2529, of the Code of 1873, but that it is especially provided f°r section 3261, and that the period 'of limitation is six year’s. This position, we think, is not tenable. This is not an action for the recovery of real property, but to recover for the use and occupation of real estate. Where an action is brought for the recovery of real property, and for the rents a.nd profits, the plaintiff may, under section 3261, recover for the use and occupation for the six years prior to the commencement of the action. This section applies only to an action instituted *122under the chapter in which it is contained. Where an independent action is instituted, simply for the purpose of recovering for the use and occupation, the action falls under the general statute of limitations, which, it is not denied, is five years.

2.-: land-ant. II. Plaintiffs claim, however, that the action of Alexander against these plaintiffs was determined in May, 1868, in which plaintiffs w^ere found to be the owners of the property in question; that defendant was then the tenant of Alexander; that this tenancy could not be terminated before the first day of March, 1869, and that the action was brought within five years from that time. The obvious answer to this is, that the landlord of defendant having been determined not to be the owner of the premises, his tenant was liable to eviction by the real owner at any time.

III. It is claimed the court erred in dismissing plaintiffs’ action, and in rendering judgment against them for costs. It is urged that plaintiffs were entitled to a trial, and to have their right to recover passed upon by the court. The court did not dismiss plaintiffs’ action. The record shows the cause was disposed of upon the merits. The plaintiffs having failed to produce any proof of the occupation of their premises, except for the period barred by the statute of limitations, the court found there was no proof upon which plaintiffs could recover, and hence he rendered judgment for defendant. The court could not have done otherwise, or rendered any different judgment.

Affirmed