only, of real property, and the judgment in this court, or any other court to which the action may be appealed, will not be a bar to any other action brought by either party.5 The Legislature wisely made this provision in order that title may be tried in an appropriate action in the district court; for, if it were not for this provision, the judgment of the justice court might be regarded as res adjudicata, and it would thus preclude the district courts deciding questions of title."

Sec. 804. The notice to quit-How served.

It is made the duty of the party desiring to commence an action under this chapter, to notify the adverse party to leave the premises, for the possession of which the action is about to be brought, and the notice must be served at least three days before the commencement of the action, by leaving a written copy with the defendant, or at his usual place of abode, if he cannot be found; such notice may also be served by leaving a copy thereof with some person over twelve years of age, on the premises described in the notice."

If any considerable interval of time intervene between the giving of the notice and the commencement of the action, it will operate as a waiver of the notice. The notice is waived in cases where the action is brought for failure to pay rent, and the relation of landlord and tenant is denied by the defendant. The names of the parties who claim the property need not appear in the body of the notice to quit, if the names are signed to the notice given.10

4 Snyder, 6,428; McDonald V. Stiles, 7 Okla. 327, 54 Pac. 487; McClung v. Penny, 11 Okla. 477, 69 Pac. 499; Anderson v. Ferguson, 12 Okla. 307, 71 Pac. 225.

Snyder, 6,431; Wilson, 5,088; Kansas, 5,016 (1889).

Zahn v. Obert, 103 Pac. 704. Snyder, 6,432; Wilson, 5,089; Kansas, 5,017 (1889); Gardner v. Kime, 20 Okla. 784, 95 Pac. 242;

Richardson v. Penny, 6 Okla. 328, 50 Pac. 231.

8 New, etc., v. Collins, 21 Okla. 430, 96 Pac. 607.

9 Polson v. Parsons, 104 Pac. 336. 10 Vansellous v. Huene, 108 Pac. 1,102; Oklahoma City v. Hill, 4 Okla. 521, 46 Pac. 568; Conoway v. Gore, 22 Kan. 216; Douglass v. Whitaker, 32 Kan. 381, 4 Pac. 874.

In the State of Ohio, where its statutes are similar to those of this State, it has been held that three days' notice to the tenant holding over, to quit, may be served as well before, as after the end of the term.11 The notice may be given by an agent in his own name as agent.1 But the person who claims the premises is the only person who may bring the action under the notice.18

Sec. 805. The proof of service of the notice.

12

It is not competent to prove the service of this notice to quit, by the indorsement on the same of the manner of service by the person who serves it. Such service is an independent fact and must be proved as any other item of evidence in the case. The notice should clearly show who claims the right of possession, and who makes the demand, as such person alone can maintain the action under the notice.14

Sec. 806. The three days counted, how.

In computing the three days for the service of the notice required by statute, the time is counted by excluding the first day. The statute of this State fixes the manner of computing the time within which the act must be done. It says,

11 Leutzy v. Herchelrode, 20 O. S. 334.

12 Fitzgerald v. Nunn, 18 O. C. C. (Ohio), 608.

13 Best v. Frazier, 16 Okla. 523, 85 Pac. 1,119. The following cases show the nature and kind of notice required in forcible entry and detainer actions. Douglass v. Anderson, 4 Pac. (Kan.) 257; Stullar v. Parks, 31 Pac. (Kan.) 301; Peddicord v. Beck, 86 Pac. (Kan.) 465; Douglass v. Parker, 5 Pac. 178.

14 Best v. Frazier, 16 Okla. 523, 85 Pac. 1,119. Where the complaint is founded on a notice which fails at the trial, the plaintiff may be allowed to amend his pleadings to conform to the proof, and base his case upon another notice served more than three days before the commencement of the action. Best v. Frazier, 16 Okla. 529, 85 Pac. 1,119.

"The time shall be computed by excluding the first day and including the last; if the last be Sunday, it shall be excluded.'' 15

Sec. 807. The justice shall give restitution, when.

Any justice, within his proper county, is given power to inquire, in the manner hereinafter directed in this chapter, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully and by force, hold the same, and if it be found, upon such inquiry, that an unlawful and forcible entry has been made, and that the same lands or tenements are held unlawfully, then such justice, under the law, is required to cause the party complaining to have restitution thereof.16

Sec. 808. The extent of jurisdiction.

Proceedings under the law, as set forth in this chapter, may be had in all cases against tenants holding over their terms; in sales of real estate on execution, orders or other judicial process, where the judgment debtor was in possession at the time of the rendition of the judgment, or decree, by virtue of which such sale was made in sales by executors, administrators, guardians and on partition, where any of the parties to the partition were in possession at the commencement of the suit, after such sales, so made, on execution or otherwise, have been examined by the proper court, and the same by said court, adjudged legal; and in cases where

15 Snyder, 5,558; Wilson, 4,918; Kansas, 5,218 (1901); Schultz v. Hine, 18 Pac. (Kan.) 221; Hook v. Bixby, 13 Kan. 164; Dougherty v. Porter, 18 Kan. 206; Neutzel v. Hunter, 19 Kan. 291; Worthy v. Cooper, 23 Kan. 432; Warner v. Bucher, 24 Kan. 478; English v. Williamson, 34 Kan. 212, 8 Pac.

214; Buck v. Davidson, 79 Pac. 119; Van Lear v. Kansas, etc., 43 Pac. 1,134; City v. Jones, 44 Pac. 273; Dwelling v. Osborne, 40 Pac. 1,089; Beckwith v. Douglass, 25

Kan. 229.

16 Snyder, 6,429; Wilson, 5,C86; Kansas, 5,014 (1889); Nebraska, 1,962 (1907).

the defendant is a settler or occupier of lands and tenements without color of title, and to which the complainant has the right of possession. This provision of the statute is not to be construed as limiting the other provisions hereinbefore set forth.17

Sec. 809. The action will never try title.

The forcible entry and detainer statute providing a speedy recovery for the possession of real estate, can never be used to try the title to lands in question. The action is to recover possession. It is difficult to understand, sometimes, what is meant, when it is said that the action can never be made to determine title; for even in the simple action of getting possession, the possession must necessarily involve the validity of some legal conveyance. The deeds and other conveyances of title may be offered in evidence as proof of the right of possession.18 The question of title may be an incident to, or evidence of, the right of possession, and in the trial of a forcible entry and detainer case, the title may be inquired into sufficiently to determine the right of possession, and for such purpose only.*

If the question of ownership, or in which party the title may be, is not properly in issue in the case, then the mere claim of title, or offer in evidence of a deed of conveyance by one of the parties, will not raise the question of title so as to divest the justice of jurisdiction. Title is only involved where its validity may properly call for decision. 19

17 Snyder, 6,430; Wilson, 5,087; Kansas, 5,015 (1889).

18 Oklahoma City v. Hill, 4 Okla. 521, 46 Pac. 568.

* McDonald v. Stiles, 7 Okla. 327, 54 Pac. 487; Bunn v. Hartshorn, 12 Okla. 121, 69 Pac. 1,049; Olds v. Congar, 1 Okla. 231, 32 Pac. 337.

19 Chisholm v. Weise, 5 Okla. 217, 47 Pac. 1,086; McQuestion v. Wal

ton, 12 Okla. 130, 69 Pac. 1,038; Cunningham v. Morris, 12 Okla. 132, 69 Pac. 1,133. Under the stat ute it is not necessary for the defendant to show that he claimed the ownership of the premises. Where it is shown that he has, by force, dispossessed the plaintiff, the action need not be predicated on landlord and tenant. Ibid.

The title to real estate where the right to possession of the same is in controversy in the action, may not be put in issue so as to adjudicate such title, for in such action the title, as such, cannot be determined; it being merely intended that only the right of possession should be tried in the action.20

Sec. 810. The action will lie against the holder of a valid title, who acquires possession by force.

The very purpose of the law of forcible entry and detainer is that anyone in the possession of real estate shall not be turned out by force and violence. The party so using force may have a superior title, and may have a better right to the present possession, but the policy of the law has always been in such case, to forbid any person righting himself in cases of that kind, by his own hand and by violence, and to require the party who has in this manner obtained possession, to restore it to the party from whom it has been so obtained. The rule, therefore, in such case, is that the action of forcible entry and detainer may be maintained against any person who commits forcible entry and ouster, even though the latter is the owner of the property and entitled to the immediate possession, if the plaintiff had, at the time of the forcible entry and ouster, the actual and peaceable possession thereof.21

20 Brennan v. Shanks, 103 Pac. 704; Oklahoma City v. Hill, 4 Okla. 531, 46 Pac. 568; Chisholm V. Weise, 5 Okla. 217, 47 Pac. 1,086; Bunn v. Hartshorn, 12 Okla. 121, 69 Pac. 1,049; McQuiston v. Walton, 12 Okla. 130; 69 Pac. 1,048; Conoway v. Gore, 27 Kan. 122; Buettenger v. Hurley, 34 Kan. 585, 9 Pac. 197; Owen v. Wickham, 28 Kan. 225, 16 Pac. 335; McClain v. Jones, 60 Kan. 639, 57 Pac. 500; Stover v. Hagebaker, 60 N. W. 597; Wilson v. Young, 19 N. W.

487; Petit v. Black, 12 N. W. 841; Worthington v. Woods, 34 N. W. 368; Connoly v. Giddings, 37 N. W. 939; Malloy v. Malloy, 40 N. W. 235; Post v. Bohner, 36 N. W. 308; Green v. Morris, 77 N. W. 925; Luck v. Sulpher, 10 N. W. 409; Tarpenny v. King, 82 N. W. 409.

21 Oklahoma City v. Hill, 4 Okla. 521, 46 Pac. 568; Campbell v. Coonradt, 22 Kan. 704; Conaway v. Gore, 27 Kan. 127; Burdette v. Corgan, 27 Kan. 275; Buettinger v. Hurley, 9 Pac. 197; Emssley v.