Dorrell v. Johnson, 34 Mass. 263

Dorrell v. Johnson

34 Mass. 263 | Mass. | 1835

Shaw C. J.

delivered the opinion of the Court. Though *266the record is voluminous and the pleadings complicated, the question presented by the present case is a plain one. The question is, whether the plaintiff, upon the facts appearing by the report, can maintain trespass quare clausum fregit. It appears, that the plaintiff had demised the estate for one year ending on April 1st, to one of the defendants under whom the other defendants justify. It seems very clear that when there is a demise for a fixed term, no notice to quit is necessary, on the part of the lessor ; the lessee is bound to quit and deliver up the premises, and if he continues to hold over, he is a wrongdoer. This is conceded by the defendants, but it is contended, that although a tenant thus holding over, by tbe laches of the lessor, is a wrongdoer, still he is a tenant at sufferance and not a trespasser. Taking this to be so, the case is brought to this question, whether enough is shown to have been done by the plaintiff, to revest the actual possession in herself, so that the tenant could not claim to hold by her sufferance and permission. It is a settled rule of law, that a landlord in such case has the right of possession and a right of entry, and when he has entered, he has the actual possession and may maintain trespass, either against the former tenant or any other person. Taunton v. Costar, 7 T. R. 431 ; Keay v. Goodwin, 16 Mass. R. 1 ; Turner v. Meymott, 1 Bingh, 158 ; S. C.7 Moore, 574.

But it is contended that here it is not shown that the plaintiff did any act which can be construed to be a legal entry to divest the possession of the defendants, and reinstate herself in the actual possession. But where a party is wrongfully holding possession of land, and the party having the right enters, either declaring his purpose to be, to regain possession, or doing acts of ownership, expressive of his intent to hold as owner, this is sufficient. In a late case it was held by Lord Tenlerden, that it is not necessary that the party entering should declare that he enters to take possession ; it is sufficient if he does any act to show his intention. In that case his servants ploughed the land, from which it was manifest that he intended to take possession. Butcher v Butcher, 7 Barn. & Cressw. 399.

In the present qase it is shown by a witness who was the *267agent of the plaintiff, that he went on the land and cut trees for the plaintiff, after the expiration of the term. We think this is sufficient to show that the plaintiff regained the lawful possession of the estate, and was well entitled to maintain trespass, for any injury to the soil. And though it is contended that it was not quiet and peaceable and exclusive possession, it is a sufficient answer, that it was lawful and rightful, and that of the defendants was wrongful. They could not after such entry be deemed tenants at sufferance. And although the notice given by the plaintiff on the 28th of March, requiring the tenant to surrender the estate on the 3d of April, was not necessary to determine the lease and give the plaintiff a right of entry, yet it is good evidence, to show the intent and purpose of the plaintiff, in her actual entry by her agent after the 3d of April.

Then it is contended, that the subsequent notice to quit given on the 15th of April, and the proceedings upon the landlord and tenant act, admitted the defendants’ possession, and amounted to a waiver of the former notice and entry. But we think this position cannot be supported. A party may admit the actual possession of another for the sake of a remedy, without admitting it to be lawful. It is not like the acceptance of rent for the land, after the time fixed by notice to quit, which admits that the party held as tenant, and may amount to a tacit waiver of such notice. And the same argument applies to the bond ; it does not amount to an admission that the defendant held lawfully, but was resorted to, as a means of getting speedy possession, and as a substitute for the legal process which had been commenced for the same purpose. It did not in terms, or by implication, admit the rightful possession of the defendants.

Whether the case of one or more joint defendants in trespass, against whom it is alleged there is no evidence or very slight evidence, shall be put severally to the jury, to enable them, il acquitted, to be witnesses, is a question solely to the discretion of the judge at nisi prius, to be decided upon his view of the strength of the evidence, and the probability that such defendants have been included to prevent them from being called as witnesses for other defendants.

*268We have not considered the objection to the pleadings before the justice, because, whatever the ground of that objection was, we think it was waived by the subsequent proceedings.

It is contended that, by force of the statute, the plaintiff is entitled to one bill of costs only, in these actions, because they might have been joined in one. St. 1784, c. 28, § 12. It is objected that this statute applies only tó actions upon contract. Without considering this objection, which is certainly open to great doubt, we think the ground taken by the defendants cannot be maintained, because these actions could not have been joined, inasmuch as they are for distinct trespasses, and in each of them $20 dollars' damages were claimed, and if united, the justice’s court would have had no jurisdiction.

The defaults were entered in this case, subject to the opinion of the Court upon the sufficiency of the evidence to support the actions for the plaintiff. We have not examined this evidence very particularly, but we consider that there is evidence to show an entry on the lands at different times by all the defendants, and cutting the wood and hauling off the manure, as stated. The taking off the manure after the determination of the lease, and entry of the plaintiff, is prima facie an act of trespass, and if the defendant would have relied on a right to take the manure, by agreement, usage, or otherwise, he should have shown it.

. So far as the damage is concerned, this question is still open, before the assessor agreed upon by the par.'ies, to assess the damages.