12 Gratt. 462 | Va. | 1855
after stating the case, proceeded:
The first objection taken to the judgment of the County court is, that the proceeding, having been commenced before the Code took effect, should' have been concluded under the law which was then in force, and should not thereafter have conformed, as it did, to the provisions of the Code.
I think the case comes within the -exception contained in the Code, ch. 216, § 2, p. 800, and that the proceedings had therein after the Code took effect properly conformed to its provisions. The only difference between the act of February 12, 1814, 1 Rev. Code 455, under which, this case was commenced, and the Code, ch. 134, p. 556, under which it was concluded, seems to be in the mode and form of proceeding. Each provides a summary remedy 'for the samé wrong, to wit, a forcible or unlawful entry, .or an unlawful detainer. The same evidence which was necessary to sustain the remedy under the old law is necessary to sustain it under the new; except in this, that under the new law the complaint is general, of an' unlawful withholding from the plaintiff the premises in question; and may be sustained by evidence of such unlawful withholding, whether the possession was acquired by the defendant forcibly, unlawfully, or lawfully and peaceably; whereas, under the old law,
Before I leave this branch of the subject, it'may be proper to say, by way of explanation, that I do not consider a separate complaint to be now necessary, but the only complaint which the present law seems to contemplate, is embodied in the summons.
The other objections taken to the judgment of the County court are to the admission of the deed mentioned in the first bill of exceptions as evidence to the jury; and to the giving and refusing instructions, as mentioned in the second bill of exceptions.
This case seems to have been treated, both in the County and Circuit courts, as an action of ejectment, instead of an action of unlawful entry; and to that cause the supposed errors which have arisen in the case are justly attributable.
There is a material difference between an action of ejectment and an action of forcible or unlawful entry. The title or right of possession .is always in
If a person in possession of public land may maintain trespass against a stranger, a fortiori he may maintain* forcible or unlawful entry against him. Forcible entry may be maintained where trespass cannot ; as for instance, against the owner of the land; who may defend himself against an action of trespass by the plea of liberum tenementum. Hyatt v. Wood, 4 John. R. 950. The owner of the land, having a right of entry, will not commit a trespass by entering, though with force, unless he also commit a breach of the peace. The law will not give damages against him in an action of trespass quare clausum fregit, but will compel him to restore the possession in an action of forcible entry. That the defendant, .in an action of forcible entry, cannot defend himself by showing that the land in controversy is a part of the public domain, has been decided in Alabama, Cunningham v. Green, 3 Alab. R. 127, and in Tennessee, Pettyjohn v. Akers, 6 Yerg. R. 448; and I am not aware that the contrary has been decided any where. I can see no reason for a different rule in regard to public and private lands. There is the same reason for the protection of the .actual possession against unlawful invasion in both cases. The plaintiff in the action is not suing for
But what is the nature of the possession to which this summary remedy applies? It is certainly not confined to a possession by actual occupancy or enclosure. I think it applies to any possession which is sufficient to sustain an action of trespass. Title draws after it possession of property not in the adverse possession of another. Actual possession of part of a tract of land under a bona Jifle claim and color of title to the whole, is possession of the whole, or so much thereof as is not in the adverse possession of others. This is the general principle, and it applies to the remedy in question. It has been decided in Kentucky that actual residence on one part of a tract, claiming the whole, is a possession of the unenclosed part, within the meaning of the act against forcible entries. Vanhorne v. Tilley, 1 Monr. R. 50. If this be a sound principle of law, as I doubt not it is, it applies to the land of the commonwealth as against persons not lawfully claiming under her. See Cunningham v. Green, 3 Alab. 127. Of course her rights cannot be affected by any kind of possession of her land.
Applying these principles to this case, there can be no doubt of the plaintiff’s right to recover, if the facts were according to the respective pretensions of the.
The case, then, on its merits, • seems clearly to be with the plaintiff, who is entitled to have the judgment of the County court in his favor affirmed, unless there be some error in the rulings of that court, which requires its reversal. The case, as before observed,
Those questions arise on the two bills of exceptions taken in the case. That arising on the first is as to the admissibility of the deed. There can be no doubt about the admissibility of the deed as evidence, if the facts stated in the second bill of exceptions be referred to; as they clearly show that the deed was admissible as color of title, and for the purpose of showing the metes and bounds of the tract claimed by the plaintiff under the deed, and of part of which he took actual possession. The general rule certainly is, that facts stated in one bill- of exceptions cannot be noticed by an appellate court in considering another. 1 Rob. Pr. 347. There may be exceptions to this rule where the reasons on which it rests do not apply. Perkins’ adm’r v. Hawkins’ adm’x, 9 Gratt. 649. The second bill of exceptions showing that the deed was clearly admissible, and that no additional evidence could have rendered it inadmissible, it would seem to be vain to reverse the judgment for the supposed error in admitting it before other evidence was offered which rendered it admissible. But without deciding whether this is an exception to the general rule before mentioned, and without looking to the facts stated in the second bill of exceptions, I think the deed was admissible evidence. It is a link, and it seems to me a necessary link, in the chain of the plaintiff’s evidence. One of the questions necessarily involved in the case is, whether the plaintiff was in possession of the land when the wrong complained of by him was committed? A man can rarely be in the actual occupancy .of every foot of his land. His possession of part of
The questions arising on the second bill of exceptions are, as to the instructions refused and given by the court. I think the four instructions moved for by the defendant were properly refused by the court. The first was properly refused, because even if the deed conferred no title, it did not follow that the jury should find for the defendant. The plaintiff, even if he had no title, had a right to recover if he was unlawfully dispossessed by the defendant within three years before the institution of the suit. The second was pro
I am also of opinion, that there is no error in the instruction which was given by the court; at least none to the prejudice of the defendant. This instruction, like the rest, regarded the case as an action of ejectment, and is wholly inappropriate to an action of unlawful entry. Whether the proposition therein asserted would be correct or not in an action of ejectment, it does not seem to be untrue, though irrelevant and unnecessary, in an action of unlawful entry. If, as we have seen, the plaintiff would be entitled to recover in this action on the facts supposed in the instruction, without regard to the length of his possession, a fortiori he would be so entitled if he continued to hold possession more than seven years before the defendant’s entry.
I am for reversing the judgment of the Circuit court and affirming that of the County court.
Samuels and Lee, Js. concurred in the opinion of Moncure, J.
Allen, P. and Daniel, J. dissented.
Judgment of the Circuit court reversed; and that of the County court affirmed.