Jarvis v. Hamilton

| Wis. | Jan 15, 1865

By the Court,

Downer, J.

The court below erred in granting the motion for a nonsuit. There was sufficient evidence on which to submit the case to the jury, with proper instructions. The evidence proved, or strongly tended to prove, that the plaintiff, either by himself, tenant or agent, had been in the quiet and peaceable possession of the premises, except two acres and a half, for two years before the commencement of the action. The counsel for the respondent maintains that the evidence shows that John JST. Ames was in possession of the premises at the time of the commencement of the action, as tenant of the plaintiff. Some of the testimony tends to prove that he was in possession with the rights of a tenant, and some that he was in possession merely as an agent of Jarvis. If he was acting only as an agent, Jarvis would have the possession necessary to enable him to maintain the action. Whether Ames was in possession as agent or tenant, was a question for the jury.

It is insisted that there was not evidence sufficient to support a verdict finding the defendant guilty of either a forcible entry or forcible detainer. The evidence is to the effect that Jarvis nailed up and fastened up the doors and windows of the dwelling house upon the premises, and left the house unoccupied, giving Ames care of the premises; that a short time after, Hamilton was found in possession of the house and the premises ; and when possession was demanded of him by the plaintiff, he refused to give it, and told him if he got possession it would be over his dead body, or words to that effect. The jury might have found from this testimony that the defendant broke into the house, using more or less of force and violence: and if (the possession of the plaintiff being proved to their satisfaction) the jury had found the defendant guilty of both a forcible entry and a forcible detainer, their verdict would not have been disturbed for want of evidence to sustain it. Davidson v. Phillips, 9 Yerg., 93 ; The People v. Rickert, 8 Cow., 226" court="N.Y. Sup. Ct." date_filed="1828-02-15" href="https://app.midpage.ai/document/people-ex-rel-kline-v-rickert-5465079?utm_source=webapp" opinion_id="5465079">8 Cow., 226.

It was no valid objection, that the complaint embraced two acres and a half of land that the plaintiff had ño right to recover. The verdict and judgment might have been for so much of the premises as the jury found were detained. Taylor v. White, 1 Mon., 38; Ball v. Lively, 2 J. J. Marsh., 183.

The judgment of the circuit court is reversed, with costs, and a venire de novo awarded.