28 Mo. App. 342 | Mo. Ct. App. | 1887
To maintain this action there must have been a possession in the plaintiff, and this fact of possession and the intrusion upon it is the sole issue.
I. There is no legal rule more fully and definitely settled than that, in an action of forcible entry and detainer, neither the title nor the right to the possession
Defendants claimed and asserted a right to the possession of the “ Grillis Opera House.” That right was resisted by the plaintiff, who was actually in the bodily possession, and defendants thereupon proceeded to enforce that right with their own strong hand by turning him out “by the heels.” Defendants claim that plaintiff was not in possession : that they were in exclusive possession and plaintiff was simply their agent. But this is a legal deduction, resulting from a construction of the law about which there seemed to be a violent difference of opinion. Plaintiff was in the actual occupancy of the building and claimed to be in the possession and defended such possession to the extent oE putting defendants in fear of their lives. Defendants asserted their rights, as they conceived them to be, by bodily turning plaintiff out and changing the locks, that he might not get back. And thus was the contest and conflict which the forcible entry and detainer act was
II. Defendants, as I have said, claim that plaintiff, though bodily occupying, running, controlling, and managing the opera house, was doing so as their agent or servant, and, therefore, his possession was their possession, and they were, consequently, not guilty of a breach of the law in entering and turning Mm out. Is this position tenable under the adjudications in this state ? However wrongfully a possession may be obtained,' it cannot be intruded upon, and a trespasser may maintain the action. Authorities, supra. If a trespasser, in this action, is protected by the statute, why is not an agent or servant also, who may assert Ms possession and resist intrusion ? If a servant or agent, who is in the exclusive bodily possession of a house, as distinguished from Ms legal right, resists the attempted entry of Ms master or principal, must such master or principal organize a storming party and capture the premises by bloodshed, if need be? This question has been decided in Ensly v. Bennett (37 Iowa, 15), where the court says that, “It is immaterial, also, in what capacity or relation the plaintiff is in possession, whether as owner, tenant, agent, or as a mere trespasser. It is the fact of possession alone that is material. A person may render himself liable to an action of forcible entry and detainer by entering upon his own premises, even when he has the right to immediate possession.”
The authorities to which defendants have especially called our attention are not forcible entry and detainer cases. It is quite clear that one may successfully resist a suit in trespass, an action on a contract, or the like, and yet fail in a defence to forcible entry and detainer of the same property. The forcible entry and detainer act is a law standing apart and bearing little analogy to other law. Much has been said to show that the contract, in this case, did not create a tenancy, but one does not need to be a tenant to bring this action.
As before stated, much of the argument was devoted to the question, whether the contract created, the relation of landlord and tenant or master and servant. But whether plaintiff was a tenant or a servant cannot affect this case as it has been developed by the evidence. The contract, whatever else it may not have done, did put plaintiff in “charge and control and'possession of the opera house.” And it gave him ‘ ‘ full and complete control of the house (to) run and manage the same for himself and in his own name.” His possession of the house seems not to be limited, though, for the security of the reputation of the house and payments to defendants of their stipulated per cent., his control of the treasury, performances, and exhibitions, may have been. So if it should be conceded that plaintiff was mistaken as to his legal rights under the contract, yet it is certain he was occupying and claimed to be in possession of the house, as against defendants, and that he resisted them until overcome vi et armis. Objections made against the sufficiency of the affidavit are not deemed to be well taken.
The judgment is reversed and the cause remanded.