Low v. Elwell

| Mass. | Nov 29, 1876

Gray, C. J.

A tenant holding over after the expiration of his tenancy is a mere tenant at sufferance, having no right of possession against his landlord. If the landlord forcibly enters and expels him, the landlord may be indicted for the forcible entry. But he is not liable to an action of tort for damages, either for his entry upon the premises, or for an assault in expelling the tenant, provided he uses no more force than is necessary. The tenant cannot maintain an action in the nature of trespass quare clausum fregit, because the title and the lawful right to the possession are in the landlord, and the tenant, as against him, has no right of occupation whatever. He cannot maintain an action, in the nature of trespass to his person, for a subsequent expulsion with no more force than necessary to accomplish the purpose; because the landlord, having obtained possession by an act which, though subject to be punished by the public as a breach of the peace, is not one of which the tenant has any right to complain, has, as against the tenant, the right of possession of the premises; and the landlord, not being liable to the tenant in an action of tort for the principal act of entry upon the land, cannot be liable to an action for the incidental act of expulsion, which the landlord, merely because of the tenant’s own unlawful resistance, has been obliged to resort to in order to make his entry effectual. To hold otherwise would enable a person, occupying land utterly without right, to keep out the lawful owner until the end of a suit by the latter to recover the possession to which he is legally entitled.

This view of the law, notwithstanding some inconsistent opinions, is in accordance with the current of recent decisions in England and in this Commonwealth.

In Turner v. Meymott, 7 Moore, 574; S. C. 1 Bing. 158; it was decided that a tenant whose term had expired could not maintain trespass against his landlord for forcibly breaking and entering the house in his absence. In Hillary v. Gay, 6 C. & P. 284, indeed, Lord Lyndhurst at nisi prius, while recognizing the authority of that decision, ruled that if the landlord, after the expiration of the tenancy, by force put the tenant’s wife and furniture into the street, he was liable to an action of trespass quare clausum fregit. And in Newton v. Harland, 1 Man. & Gr. 644 ; S. C. 1 Scott N. R. 474; a majority of the Court of Common Pleas, overruling decisions of Baron Parke and Baron Alderson at nisi prius, held that under such circumstances the landlord was liable to an action of trespass for assault and battery.

But in Harvey v. Brydges, 14 M. & W. 437, Baron Parke stated his opinion, upon the point raised in Newton v. Harland, as follows: “ Where a breach of the peace is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification to say that the jplaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly ; even though, in so doing, a breach of the peace was committed.” Baron Alderson concurred, and said that he retained the opinion that he expressed in Newton v. Harland, notwith standing the decision of the majority of the Court of Common Pleas to the contrary. The opinion thus deliberately adhered to and positively declared by those two eminent judges, though not required by the adjudication in Harvey v. Brydges, is of much weight. In Davis v. Burrell, 10 C. B. 821, 825, Mr. Justice Cresswell said, that the doctrine of Newton v. Harland had been very much questioned. And it was finally overruled in Blades v. Higgs, 10 C. B. (N. S.) 713, where, in an action for an assault by forcibly taking the defendant’s property from the plaintiff’s hands, using no more force than was necessary, Chief Justice Erie, delivering the unanimous judgment of the court, approved the statement of Baron Parke, above quoted, and added: “ In our opinion, all that is so said of the right of property in land applies in principle to a right of property in a chattel, and supports the present justification. If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury, instead of redressing it.” See also Lows v. Telford, 1 App. Cas. 414., 426.

In Commonwealth v. Haley, 4 Allen, 318, the case was upon an indictment for forcible entry, and no opinion was required or expressed as to the landlord’s liability to a civil action.

The judgment in Sampson v. Henry, 11 Pick. 379, turned upon a question of pleading. The declaration, which was in trespass for an assault and battery, alleged that the defendant assaulted the plaintiff, and with a deadly weapon struck him many heavy and dangerous blows. The pleas of justification merely averred that the defendant was seised and had the right of possession of a dwelling-house, that the plaintiff was unlawfully in possession thereof and forcibly opposed the defendant’s entry, and that the defendant used no more force than was necessary to enable him to enter and to overcome the plaintiff’s resistance; but did not deny the use of the dangerous weapon and the degree of violence alleged in the declaration; and were, therefore held bad, in accordance with Gregory v. Hill, 8 T. R. 299, there cited. The remarks of Mr. Justice Wilde, denying the right of a party dispossessed to recover possession by force and by a breach of the peace, would, if construed by themselves, and extended beyond the case before him, allow the tenant to maintain an action of trespass against the landlord for entering the dwelling-house, in direct opposition to the judgment delivered by the same learned judge, in another case, between the same parties, argued at the same, term and decided a year after. Sampson v. Henry, 13 Pick. 36.

In the latter case, which was an action for breaking and entering the plaintiff’s close, and for an assault and battery upon him, the court held that the plea of liberum tenementum was a good justification of the charge of breaking and entering the house, but not of the personal assault and battery. That deci sion, so far as it held that the landlord was not liable to an action of trespass quare clausum fregit by a tenant at sufferance for a forcible entry, has been repeatedly affirmed. Meader v. Stone, 7 Met. 147. Miner v. Stevens, 1 Cush. 482, 485. Mason v. Holt, 1 Allen, 45. Curtis v. Galvin, 1 Allen, 215. Moore v. Mason, 1 Allen, 406. And, so far as it allowed the plaintiff to recover, in such an action, damages for the incidental injury to him or to his personal property, it has been overruled. Eames v. Prentice, 8 Cush. 337. Curtis v. Galvin, ubi supra.

It has also been adjudged that a landlord, who, having peaceably entered after the termination of the tenancy, proceeds, against the tenant’s opposition, to take out the windows of the house, or to forcibly eject the tenant, is not hable to an action for an assault, if he uses no more force than is necessary for the purpose. Mugford v. Richardson, 6 Allen, 76. Winter v. Stevens, 9 Allen, 526. For the reasons already stated, we are all of opinion that a person who has ceased to be a tenant, or to have any lawful occupancy, has no greater right of action when the force exerted against his person is contemporaneous with the landlord’s forcible entry upon the premises.

Our conclusion is supported by the American cases of the greatest weight. Jackson v. Farmer, 9 Wend. 201" court="N.Y. Sup. Ct." date_filed="1832-05-15" href="https://app.midpage.ai/document/jackson-ex-dem-stansbury-v-farmer-5513924?utm_source=webapp" opinion_id="5513924">9 Wend. 201. Overdeer v. Lewis, 1 W. & S. 90. Kellam v. Janson, 17 Penn. St. 467. Stearns v. Sampson, 59 Maine, 568. Sterling v. Warden, 51 N. H. 217. The opposing decisions are so critically and satisfactorily examined in an elaborate article upon this subject in 4 Am. Law Rev. 429, that it would be superfluous to refer to them particularly.

The tenancy of the plaintiff’s husband under an eral lease was but a tenancy at will, which, by the written lease from his landlord to the defendant, and reasonable notice thereof, was determined, and he became a mere tenant at sufferance. Pratt v. Farrar, 10 Allen, 519. It being admitted that, if the defendants had the right to remove the plaintiffs by force, no more force was used than was reasonably necessary, this action cannot be maintained. Plaintiff nonsuit.