26 N.Y.S. 568 | N.Y. Sup. Ct. | 1893
Lead Opinion
I think the judgment of the county court should be affirmed. This proceeding was instituted by the respondent under title 2, c. 17, of the Code of Civil Procedure, to acquire the possession of the farm or premises in question. The respondent’s claim, as finally made, was based on the allegation that the appellants, by force, held the possession of the premises sought to be recovered. The answer was in effect a general denial of the allegations in the petition, but contained no allegation that the appellants or their ancestor, or those whose interest they claimed, had been in quiet possession of the property for three years before the alleged forcible detainer, as provided by section 2245. On the trial the justice dismissed the proceeding, and rendered judgment against the respondent, with costs, on the ground that, as the appellants claimed a right to the possession of the premises, he had no jurisdiction of the proceedings. From that judgment the respondent appealed to the county court of Chemung county, where the judgment or final order made by the justice was reversed. The propriety of the last judgment is the question here to be determined.
The Code provides that a person who, having peaceably entered upon real property, holds the possession thereof by force, may be removed therefrom, as provided in the foregoing title of the Code. Section 2233. Where the application is founded upon an allegation of forcible holding out of possession, the petitioner must allege and prove that he was in constructive possession at the time of the forcible holding out; and the adverse party must either deny the forcible holding out, or allege that he or his ancestor, or those whose interest he claims, had been in quiet possession for three years together, next before the alleged forcible detainer, and that his interest is not ended at the time of the trial. That Jacob Lowman owned and was in possession of the premises in question at the time of his death is in no manner disputed. That the premises were devised to Frank L. Clearwater by the last will and testament of Jacob Lowman is also undenied. The undisputed evidence likewise shows that Seymour Lowman was the duly-appointed guard
Under these circumstances, it seems to me that the justice erred in dismissing the proceeding and rendering judgment for the respondent. By reference to the petition, it will, be seen that it is alleged that Frank L. Clearwater was the owner in fee of the premises, and that the petitioner was the general guardian of his estate and person. The proof was undisputed that the title was in the infant, and that the respondent was his duly-constituted guardian, and was in possession when defendant unlawfully entered. Thus, it would seem that it was, in effect, both alleged and proved, that the respondent was in constructive possession of the premises, within the meaning of section 2245 of the Code,
But it is said that the cases of Bliss v. Johnson, 73 N. Y. 534; Id., 94 N. Y. 235; and Alexander v. Griswold, (Com. Pl. N. Y.) 17 N. Y. Supp. 522,—are adverse to the decision of the county court, and sustain that of the justice. In Bliss v. Johnson the action was for assault and battery. The defendants sought to justify on the ground that one of them owned the land, and on the first trial they offered to prove that the title to the locus in quo was in one of the defendants. This evidence was rejected, and the court of appeals held that the court erred in excluding the evidence. In delivering the opinion on the first appeal in that case, Andrews, J., said:
“An entry by a stranger, without right, during" the temporary absence of the plaintiff, would not have divested his possession, and he would have been justified in removing the intruder by force. But his prior possession gave him no such right, as against the defendants. The true owner of land, wrongfully held out of possession, may watch his opportunity, and, if he can regain possession peaceably, may maintain it, and lawfully resist an attempt by the former occupant to retake possession. Nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful detainer by the true owner, when the entry was both lawful and peaceable.”
On the second appeal, it was held that one holding the legal title to land, although not actually occupying it, will be considered as constructively in possession thereof, unless it is in the actual hostile occupancy of another under a claim of title. It was also held that the evidence -in that case was insufficient to establish a claim by adverse possession. It may be remarked, in passing, that the above case was not a proceeding under the statute relating to forcible entry and detainer, and hence the decisions have no bearing upon
The Alexander Case was a proceeding under the statute relating to forcible entry and detainer, and in that case it was held that, a landlord having made a quiet entry and regained possession of leased premises under a claim of right, an action of unlawful detainer could not be maintained against him, or any person to whom "he thereafter leased the premises.
In Kelly v. Sheehy, 60 How. Pr. 439, it was held that the proper interpretation of section 2233 was that the proceeding for forcibly holding out may be maintained, not only in cases of forcible entry, but in cases where one peaceably enters upon real property without right, and holds the possession thereof by force, and that in that case, as the entry was without right, and the real property was held by force, it was held that the section applied.
I find nothing in the cases relied upon which seems to aid the appellants. On the contrary, they tend to uphold the decision of the county court. If the appellants had alleged and showed title, then the doctrine of these cases would have been applicable. Moreover, it would seem that, under the provisions of section 2245, the only defenses the appellants could interpose were (1) a denial of the forcible holding out; and (2) that they or their ancestor, or those whose interest they claimed, had been in quiet possession for three years before the forcible detainer, and that his interest was not ended or determined. I think the judgment of the county court is right, and should be sustained.
Judgment of county court affirmed, with costs.
MERWIN, J., concurred.
Code Civil Proc. § 2245, provides: “Where the application is founded upon an allegation of forcible entry or forcible holding out, the petitioner must allege and prove that he was peaceably in actual possession of the property, at the time of a forcible entry, or in constructive possession, at the time of a forcible holding out; and the adverse party must either deny the forcible entry, or the forcible holding out, or allege, in his defense, that he, or his ancestor, or those whose interest he claims, had been in quiet possession of the property, for three years together next before the alleged forcible entry or detainer; and that his interest is not ended or determined, at the time of the trial.”'
Dissenting Opinion
(dissenting.) After the elimination from the case, by concession, of the allegation relating to forcible entry, there remained only to be considered the question whether the defendants were brought within the provision of section 2245 of the Code of Civil Procedure, as to “forcible holding out.” That section seems to require that, where the proceeding is founded upon “forcible holding out,” the petitioner should be “in constructive possession at the time of the holding out.” No such averment is found in the petition, nor does the proof given before the justice require a finding to that effect. On the contrary, the justice was called upon to find upon the proofs submitted to him, and in doing so to construe the evidence, and determine what part of it he would give credence to,- and in doing so he has, in effect, found that the plaintiff was not in constructive possession at the time of the commencement of the proceedings, nor at the time of the trial. The justice has, in effect, found that the defendants were in possession, and that they made “a claim of right to the possession, of said premises.” By the evidence given upon the trial, it appears that the defendants claimed to be in possession under a right, and they put their refusal to remove from the premises on the ground that they were there rightfully. The female defendant alleged, at the time the plaintiff sought to re
“Mrs. Sprague said she bad bad legal advice, and proposed to stay there, if she had to do it by force. They said I had no right there, and ought not to try and get it away from them. Asked Mrs. Sprague what kind of a title she had of the place. She said she had a paper signed by Jacob Lowman.”
It appeared by the evidence that Jacob Lowman was the former owner of the premises, and was the party from whom the plaintiff claimed to derive title.
It seems that the doctrine laid down by Andrews, J., in Bliss v. Johnson, 73 N. Y. 534, is applicable to the case in hand. In the course of that opinion, he says:
“The defendants entered upon the land during the absence of the plaintiff, peaceably and without force, and from that time they were in actual possession, and the possession of the plaintiff was determined. An entry by a stranger, without right, during the temporary absence of the plaintiff, would' not have divested his possession, and he would have been justified in removing the intruder by force. But his prior possession gave him no such right as against the defendants. The true owner of land, Wrongfully held out of' possession, may watch his opportunity, and, if he can regain possession peaceably, may maintain it, and lawfully resist an attempt by the former occupant to retake possession. Nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful' detainer by the true owner, when the entry was both lawful and peaceable.”
We think the findings which the justice was warranted to make, and in effect did make, brought the case within the principle just quoted. The premises were in the actual occupancy of the defendants, and the occupancy was hostile, and was under a claim of title; and the plaintiff was not, therefore, constructively in the possession of the premises, according to the rule laid down in Bliss v. Johnson, 94 N. Y. 235. The rule which is applicable to the case before us, we think, is correctly laid down in Alexander v. Griswold, (Com. Pl. N. Y.) 17 N. Y. Supp. 522. After stating numerous cases, the opinion concludes as follows:
“Respondent Griswold having made a quiet entry, and gained possession, under a claim of right, the law will not suffer that right to be attacked, except by an action duly brought by the respondent for that purpose.”
It seems that the decision made in this case is not a bar to an action of ejectment. Code, § 2264. The foregoing views lead to the conclusion that the decision of the justice was correct. Judgment of the county court reversing the justice’s judgment reversed,, with costs, and the judgment of the justice affirmed, with costs.
