4 Rand. 468 | Va. Ct. App. | 1826
delivered his opinion, in which the other Judges concurred.
Allen mortgaged the premises in dispute to Gibson and Lesslie, by a deed which conveyed a joint estate to the mortgagees. Lesslie died. The deed contained a covenant that the mortgagor should possess and enjoy the mortgaged premises, until default should be made in the payment of the money. Default was made. Gibson, the surviving mortgagee, proceeded, under the act of February 12, 1814, {Rev. Code, 445, ch. 115,) to recover possession of the mortgaged premises. .Judgment was given for the plaintiff, and the case has come here by supersedeas. Several bills of exception were taken by the defendant.
The materia] questions in the case are, whether á mortgagee can, in any case, obtain the possession of the mortgaged premises by a proceeding under that act ? And if he can, whether the surviving mortgagee can recover in his own name, without joining the heirs of the deceased mortgagee as a party in the proceeding ?
The objection that the complaint omits to state the estimated quantity of the land, is, I think, entitled, to no weight. The statute directs the complaint to be in the form prescribed, or to that effect. The only object of this direction was, to require a reasonably certain description of the property claimed. Such a description is found in the complaint upon which the proceedings in this case were founded. The property is in the city of Richmond, and described as lots bounded by a certain street, and adjoining the United States Bank. ^
By the common law, one who had a right or title to enter into land, had a right to enter and hold with force; and even since the statutes against forcible entries and detainers, a party having a right of entry is not responsible in a civil action, or in a common indictment for trespass, for
The substance of the British statutes on this subject, was enacted in Virginia in 1789. 13 Hen. St. at Lar. p. 5. That act provided, “that none shall make any entry into any lands or tenements, or other possessions whatever, but incase where entry is given by law; and in such case, not w-ith strong hand, nor with a multitude of people, but only in a peaceable and easy manner; and that-none who shall have entered into the same in a peaceable manner, shall hold the same afterwards with force;” and if any should do the contrary, it directs an enquiry by a justice of the-peace through a jury, and if any be found guilty of a violation of the act, that restitution be made to the party so put out, unless the wrong-doer has had possession for three years. A party who entered, or held by force after a peaceable entry, fell within the provisions of this act, whether he had or had not a right of entry or possession.
This act was re-modelled by the act of 1814, so as to make it a civil remedy for the immediate recovery of the possession, in certain cases, even where no force occurred. It provides, first, that. “ none shall enter into any lands or tenements, but in case where entry is given by law; and in such case, not with strong hand, nor multitude of people, but only in a peaceable and easy manner. None who shall have entered in a peaceable manner, shall hold the same against the consent of the party entitled to the possession thereof.” Secondly, “If any shall enter, or shall have entered, into any lands or tenements, in case where entry is not given by law, or, if any shall enter, or shall have entered, into any lands or tenements, with strong hand, or with multitude of people, even in case
The first section only prohibits unlawful entries, and forcible entry where the entry is lawful; but does not prohibit a person who is entitled to the possession, from holding with force, if he has entered peaceably.
The second section gives a remedy to a party turned out of possession, by another entering where no entry is given him by law, or entering by force. The ease of a mortgagee never in possession, claiming against a mortgagor who never entered- upon the mortgagee, nor turned him out of possession, certainly does not fall within the provision of this section. If a mortgagee who has never been in possession, can avail himself of this summary remedy, it must be by force of the third section.
There is considerable difficulty in determining the effect' of this third section; and, in order to understand it, it will be necessary to look to other provisions of the statute, which seem to have a bearing upon it. The act, in prescribing the forms of proceeding in enforcing this summary-remedy, proceeds; “The party so turned out of possession, or so held out of possession, may exhibit his complaint, &c. in the following form, or to the following
The terms of the third section, in their literal import, can be applied only to the cases of persons originally entering by a title which gives a temporary, or defeasible estate, or to the representatives of the first taker of such
The policy of the statute, upon this construction, was strongly objected to, as subjecting the party in a summary way, upon a short notice, and before two Magistrates only, to be turned out of possession; and it was insisted, that being in derogation of the common law, it should be construed strictly. I do not see the force of this objection. The Justices may adjourn from time to time, as the justice of the case may require, so as, to enable the party to make a full defence, and to produce all his evidence. The party may have the assistance of counsel, as in any other Court; may save all questions of law by exceptions; and is entitled for any apparent error, to a writ of error or supersedeas, though not to an arbitrary appeal, as in ejectment. He cannot, therefore, be turned out of possession, by any erroneous proceeding. At the same time, he cannot delay the plaintiff in the pursuit of his rights, at pleasure, by arbitrary appeals; nor does this proceeding affect bis right in any other controversy on the same subject, in any other form. As, therefore, the defendant can in no case be turned out of possession, unless it is apparent that he ought to surrender the possession on the demand of the plaintiff, and to retain it would be unjust, I cannot see any objection to giving this statute a liberal construction, as a remedial statute,
The next enquiry is, whether this proceeding can be maintained by one of several tenants in common. This proceeding involves no question of title. The only question is, whether the plaintiff is entitled to- possession as” against the defendant. For the purpose of determining this question, the title may be given in evidence. As against all others than his companions, a joint-tenant, tenant in common, or co-parcener, is entitled to the possession of the whole. One parcener or tenant in common may enter for all; and if he enters generally, it is in point of law an entry for all. 9 Vin. Abr. 456; Entry, F. pl. 1, 2, 3; and one parcener could, in assise, recover the whole against an abator; for she had right against all who had no right. Ibid. pl. 2, note. So one joint-tenant or tenant in common might maintain a warrant of forcible entry and detainer against his companion. 13 Vin. Abr. 381, pl. 14. In assise for the whole land, if it appear that the plaintiff is entitled to one moiety, and the defendant to the other, the judgment should be only for a moiety. 3 Vin. Abr. 233; B. 6, pl. 1. In a writ of right, and other real actions, the mere right is involved, and the proceeding and recovery must be according to the title; and in ejectment, nothing can be recovered but that for which. the lessor of the plaintiff can make a valid lease. One joint tenant, coparcener, or tenant in common, although he has a right to the possession of the whole against strangers, cannot make a valid lease for more than his own part of the land; and therefore, no more can be recovered in ejectment than the part to which the lessor, who is a joint tenant,' tenant in common, or parcener, is entitled.
I think, therefore, that one tenant in common can pursue this remedy for the whole land, against any person having.no right whatever.
Judgment affirmed.
Judges Coaj.teEj and Cabell absent.