Corlies v. Corlies

17 N.J.L. 167 | N.J. | 1839

Hornerower, C. J.

The plaintiffs in this court, were defendants before the Justice, and a verdict and judgment was rendered against them. A variety of reasons were assigned, why this judgment should be reversed ; but it will only be necessary to notice the 1st, viz. That the complaint does not shew that the plaintiff below, had any possession of the premises, at the time when the forcible entry was supposed to have been committed.—In Mairs v. Sparks, 2 South. 516, it w'assaid by this court, that the plaintiff in such an action must have, either a posession in fact, or law : that a mere right or claim of possession, is not sufficient, but it must be a right in possession, which is disturbed and for which the action is brought. Bennett v. Montgomery, 3 Halst. 48, and Mercereau v. Bergen, 3 Green R. 244, are to the same effect. It ought then to appear on the complaint filpd with the Justice, that the forcible entry was committed upon the plaintiffs’ possession, and if it does not, the complaint will be groundless and shew no cause of action. But the complaint filed in this case, fails to set forth or allege any possession in the plaintiff.— It states only that the defendants on a certain day, with force and strong hand,entered upon a certain messuage,Sic. situated, See. whereof the plaintiff was seized of an estate of inheritance in fee simple, and threatened to beat, &c. the said plaintiff, formerly in possession of said lot,” should he come upon the same. Now it may be true that the plaintiff was seized of such an estate in the premises, and yet have had no present possession, either in fact or in lato ; or nothing but a mere right of possession. And indeed the complaint seems to negative any present possession of the plaintiff, for it speaks of the lot as ** formerly” in his possession.

In my opinion, therefore, the complaint is insufficient, and contains no legal cause of action.

Dayton, J.

A number of nice exceptions have been taken to the proceedings in this case. I shall notice but one, which is undoubtedly well founded, without intimating an opinion as to the other points. The complaint filed with the Justice, charges in substance that the complainant was seized of the premises therein described, and that the defendants below, entered thereon, and pushed and backed off the complainant and his horses, &c. from said premises..

These averments may all be true, and yet the defendants below, not be guilty of a forcible entry and detainer. To eanbfe him to sustain this action, the complainant mast have had actual possession of the premises, at the lime of the wrong cmaplained of, — -a mere seixin will not do. Bennett v. Montgomery, 3 Halst. 49. It is true that, it is averred that he and his horses and waggon were pushed and backed off ü<e pvw mises | but this may be trae, though he was there only by accident, or as a visitor, or trespasser — tho actual possession of iba property, as meant by ilia law, may at the same time have beef* la a tenant who alone could sustain this action,,.

ii he ccaplanil filed is insufficient, and for tirio reason tbojadgiBcnti must bo reversed.

Fo'm, J. and White, J. concurred.

Njsyius, J. absent.

Judgment reversed*