58 Mass. 302 | Mass. | 1849
This was an action of trespass for an assault and battery, and for expelling the plaintiff forcibly from a house used by the elder and deacons and members of the First Freewill Baptist Church in the city of Lowell. The defendant justifies as a deputy sheriff, by virtue of a writ of habere facias possessionem against the elder and deacons on a judgment for one seventy-eighth part, in common and undivided, of the said house. And we are of opinion, upon the facts reported, that the proceedings of the defendant are fully justified, and that the ruling of the presiding judge was correct.
The defendant had authority to enter the house, as he did, by breaking open a door which was fastened. Bac. Ab. Trespass, F. 2; Semayne’s Case, 5 Co. 91. It does not appear, it is true, by the evidence, that any demand was first made to have the door opened; but it does not appear that the defendant knew, or had any cause to suppose, that any person was in the house before he entered. After his entry, he found several persons there; but it appears clearly, that they were there for the purpose of holding possession by force, and to oppose the defendant in the execution of his precept. A demand, therefore, upon them to open the door would have been useless; and the plaintiff was not there until after the defendant’s entry ; and if he had been, there can be no doubt that he would have acted in concert with the persons who were there. Under these circumstances, we are of opinion, that the defendant’s entry to execute his precept was lawful without any previous demand.
The remaining and principal question is, whether the de- , fendant was justified by his writ in removing the plaintiff from the house by force and against his will; and we are of opinion that he was. The defendant was authorized and bound by his writ, to deliver actual and quiet possession of the house to the party in whose favor the writ issued, and for that purpose to remove from the possession all persons there in, and especially those claiming under the party against whom judgment had been recovered. Bac. Ab. Eject. G. 2. n Upton v. Welts, 1 Leon. 145, it was held, that if a sneriff
It has been doubted, whether there was not a full execution of the writ, in that, case, before the expulsion of the plaintiff, because the persons in the house were secreted, and the plaintiff had quiet possession until after the departure of the sheriff; but it cannot, be doubted, that if the sheriff had known that the persons were in the house, and especially if they had opposed the delivery of possession to the plaintiff, he would have been authorized to remove them; and it would have been his duty so to do. Bac. Ab. Eject. G. 2.
Indeed, the general rule of law in this respect is quite clear, and is not controverted by the plaintiff’s counsel; but they contend that this is not a case within the general rule, because the writ of possession was only for one seventy-eighth part of the premises; and that the elder and deacons of the church, of which the plaintiff was a member, had a right of possession of the other seventy-seven shares, and to hold them in common with the plaintiff. But it appears, by the facts reported, that they had no such right; the title to the whole estate having been acquired by the assignees of the judgment on which the writ of possession issued. The plaintiff had no title, but was a mere intruder, who entered the premises without right after the entry of the defendant, who had a right to expel him by the order of the owners of the seventy-seven shares, as well as by the authority of his writ. No more force was used than was necessary to effect the expulsion, and which would support a plea of molliter manus imposuit It was contended, that the elder and deacons of the church were tenants in possession, and were entitled to a
