32 Vt. 82 | Vt. | 1859
No question has been made, but what upon the facts stated in the bill of exceptions, the plaintiff had the right to reenter upon the premises, and we think none can be well made. The only question is, did the plaintiff exercise-a legal right in a legal manner ? If he did, his reentry must have the effect to vest in him the possession of the premises, and that possession must be a legal one against the defendant.
This is not such a case as Dustin v. Cowdry et al., 23 Vt. 631. In that case the entry was by force and a strong hand and against the strenuous resistance of the plaintiff and his friends ; and the family were actually expelled from the house at an inclement season of the year, and both the family and the household effects were turned into the public highway. The manner of the entry was clearly illegal and in violation of the statute, which forbids the use of force in entering or in detaining. The defendant in that case did not exercise a legal right in a legal manner against the plaintiff, and of course could not stand upon a possession so obtained against him.' The defendant was bound to restore the possession and place the complainant in statu quo, and then proceed in a legal manner to try the title.
But this is a different case. Here the tenant had no family. He had gone away and left no one in possession, and the house defacto was vacant at the time the entry was made, and the entry was made by forcing open the door of the house which the defendant had fastened when he left the house in the morning, and there is no pretence that it was made in a riotous and tumultuous manner, or in such a way as would even tend to a breach of the peace. It does seem to us that in this case a legal right was exercised in a legal manner. The plaintiff, owning the property and having a right to enter, might, if he chose, force open his own door, and it was not for the defendant to complain of the act. It may be said the defendant only left the house for a temporary purpose, with a view to return. That no doubt is true, and that must always be the case. If the possession had been abandoned, no question could ever arise of the kind in such cases. We apprehend this case is within the case of Turner v. Meymott, 8 E. C. L. 280, and many others of the kind. The defendant in this case had gone away and had not; left hip family in possession, for he
In the case of personal property, the party injured may have redress by his own mere act by what is termed recaption, though this must not be done in a riotous manner or attended with a breach of the peace, and a remedy of the same kind may be had for injuries to real estate by an entry on lands where another person has the possession without any right; but in such a case it must be peaceable and without force.
In the ease of Wilson v. Hooper et al., 12 Vt. 655, this principle was applied to a mortgagor as against the mortgagee. Col-1, amer, J., aptly remarks, “it appears to us most reasonable to allow any man peaceably to assert his legal right by his own act, without driving him to an action and in Beecher v. Parmele et al., 9 Vt. 356, it was held that a mere intruder upon land may be forcibly expelled from the lahd, and if a trespass is committed upon the person of the intruder he must resort to his action for such injury to his person. Since the very full and able discussion of this whole subject by the present learned Chief Justice in the case of Dustin v. Cowdry et al., 23 Vt., it would be a useless work of supererogation to go over the ground again. That case simply decides that the entry <^óhnot be made by force and a strong hand, and thereby turn the tenant, his family and his effects, out of the possession of the premises, and the distinction between that case and this is well marked. /
As the plaintiff in this case exercised a legal right in a legal ■manner, his possession of the premises was lawful against the defendant, and he may well have this action against him for the subsequent disturbance.
Judgment reversed and case remandddi