Corey v. People

45 Barb. 262 | N.Y. Sup. Ct. | 1865

By the Court, Balcom, J.

Luther Corey was the owner in fee of the premises in dispute, as heir at law of his deceased son, ¡Nelson Corey, at the time of the fight between him,- Wright and Brown for the possession of the house. The widow of ¡Nelson Corey, who had married Brown, was entitled to dower in the premises, hut it had not been assigned to her, and her right to it rested in action only. She has no estate in the land, and as her quarantine of forty days from the death of her first husband, Nelsop. Corey, had expired, she was not entitled to the possession of the premises, and she and her husband, Brown, were trespassers thereon (See Jackson v. O’Donaghy, 7 John. 247; 1 Washburn on Real Property, 353.) She had no right to the possession of the premises, and no right to enter thereon for her dower, because it had not been assigned to her. Such is the law in this staté, though it is otherwise in New Jersey and some other states. (See 4 Kent’s Com. 9th ed. p. 65, &c.) Brown had no right to occupy the premises, for the reason that his only claim to the same was in right of his wife as widow of Nelson Corey, deceased. Luther Corey, as owner in fee of the premises, was entitled to the possession of the same when he and Wright entered thereon and took possession of the house.

It was proper for Wright and Corey to show that the latter was entitled to the possession- of the premises, though that fact would have been immaterial if Brown had been in the house at the time they entered it, (See Parsons v. Brown, 15 Barb. 590.) Had Brown been in the house at that time, he would have had the right to defend his possession, and the right to use all necessary force to keep Corey and Brown out of it. The law does not justify the owner of real or personal property in taking possession of it, hy his own act, from another, unless he can do so without violence or a breach of the peace. (Scribner v. Beach, 4 Denio, 448. Willard v. Warren, 17 Wend. 257. People v. Smith, 24 Barb. 16.) Brown and his wife were not living in the house, and no person was there when Corey and Wright went there and drew out the staple which held the lock that fastened the door, and entered the house, They had taken the actual possession of the house, and Wright had moved in some of his goods as tenant of Corey, when Brown came there and forcibly put them. out. Corey and Wright must he deemed to have taken possession of the house peaceably, though they were obliged to break open the door to enter it; and having obtained possession of the house peaceably, and having the right to the possession of the same, they were justified in using all necessary force to defend their possession. (See 4 Denio, 448; 17 Wend. 257; 15 Barb. 590; 24 id. 16.)

[Broome General Term, November 21, 1865.

It can pot be said that the house was Brown’s castle or the castle of his wife, for they did not live in it' or use it at the time as a dwelling. They used it only as a store house, in which they kept grain, salt, flour, pork barrels, old trumpery, &c. It was not on premises where they lived, and was no more sacred than a barn. And as Corey obtained possession of it without violence or a breach of the peace, and owned it and had the right to the possession of it, he was justified in attempting to retain the possession of the same; and as Wright had rented the house as tenant of Corey and acted under him in entering it, he possessed the same right to use force in keeping the possession of it that Corey had.

For. these reasons we ai-e of opinion the court of sessions committed errors in charging the jury and by refusing to charge some of the propositions they were requested to charge ; and that the judgment of that court should be reversed, and a new trial granted therein.

So decided.

Parker, Mason and Balcom, Justices.]