79 N.J.L. 515 | N.J. | 1910
The opinion of the court was delivered by
This was an action of forcible entry and detainer by Scbwinn against Perkins in the First District Court of Jersey City. Prior to August, 1908, Schwinn was in possession of the main front room on the first floor of a house in Jersey City under a lease from Perkins ending November 1st, 1908; there was evidence that on September 3d, 1908, during the term, one Will its was in the room in the employ of the plaintiff as caretaker and watchman. The plaintiff had there conducted a tailoring business, but about August 16th or 18th had moved to New York all Ms stock in piece goods and most of the things necessary to do business. He testified, however, that he had left part of Ms property used for trying-
The only question we think it necessary to consider is whether a parol surrender executed by an actual possession would constitute a defence in an action of forcible entry and detainer. The peculiarities of this action have been frequently dwelt upon by the courts, and the difficulties have arisen out of the seeming injustice of a judgment restoring the possession of property to one not rightfully entitled thereto. The difficulties are well illustrated by the prolonged litigation in Newton v. Harland, 1 Man. & G. 644. In Harvey v. Brydges, 14 Mees. & W. 437, Baron Parke said: “If it were necessary to decide it, I should have no difficulty in saying, that 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
The opinion as to the right of the party who is forcibly dispossessed to bring an action of trespass, expressed by the learned Chief Justice in Thiel v. Bull's Ferry Land Co., was referred to, but neither approved nor disapproved, by this court in Mershon v. Williams, 33 Vroom 779, 784, 785. It is not involved ih the present case. We think that under the statute, which forbids an inquiry into the estate or merits of the title, the plaintiff, even though his possession may be wrongful, is entitled to recover possession by this statutory action where he is ejected by violence, whether he is or is not entitled to sue in trespass for damages. It is essential, however, to the maintenance of the action that he should have been in peaceable possession. The old forms of indictment for forcible entry and detainer contained that allegation. 3 Chit. Crim. L. *1123, *1124; 2 Burn Just. 220.
The important question now presented, one of the difficult and important questions of the law, is what constitutes possession. The learned trial judge seems to have thought that mere occupancy was possession in the view of the law, a not uncommon confusion of thought to which the Court of Appeals of New York called attention in Mygatt v. Coe, 142 N. Y. 78 (at p. 85). The distinction has been touched upon in our own cases. Corlies v. Corlies, 2 Harr. 167, was an action for forcible entry and detainer. Mr. Justice Dayton, in dealing with the averments of the complaint, said that the complainant must have had actual possession of the premises, and that an averment that he and his horses and wagon were pushed and backed off the premises, when coupled with an averment of seizin in fee-simple, did not suffice, since it might be true that he was actually on the premises, but was there only by accident or as a visitor or trespasser. That mere occupancy or personal presence upon the ground'is not sufficient to constitute that possession which the law clothes with legal rights is shown by a few illustrations. There may be possession without occupancy, as where a man’s servant is in the actual occupancy of the property holding possession for him, or where a man has temporarily gone out of his house, leaving no one in charge, but still having legal possession; and there may be a case of occupancy without possession, as where in a man’s absence a mere stranger, visitor or trespasser, goes into his house without claim of right. In Bacon’s Abridgment,
rule to meet the case of a thing which is the object of dispute and so evenly disputed that no claimant can be said to have the de facto possession rather than another. It might
The illustrations last given are quite like the ease at bar. If Perkins had been allowed and able to prove what he offered to show, he would have established a prior possession of the premises in dispute, with the acquiescence of Schwinn. This, as the Supreme Court said, did not involve any questioning of Schwinn’s title or estate, but only the question of his assent to Perkins’ actual possession. While Perkins may not have been physically present in the premises at all hours, if he had taken possession in execution of a parol surrender of the lease, he was legally in possession of the property, and thereafter any attempt by Schwinn to resume possession was a trespass. A mere trespasser may be forcibly ejected if no more force than is necessary for the purpose is used; it is only when a trespasser has ceased to be a mere trespasser and his occupancy has ripened into a ¡possession, although it may be a wrongful possession only, that the statute relating to forcible entry and detainer becomes applicable. We agree with the statement of Pollock that a mere trespasser does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner. Poll. Torts 312. This was the view taken by Lord Denman in Brown v. Dawson, 12 Adolph. & E. 624 (at p. 629). He says: “A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and-drive him to produce his title, if he can, without delay, reinstate himself in his former possession.” The use of the word “former” in connection with possession seems to be inaccurate, as the possession
If the rejected evidence had been received it would have presented a question for the jury whether the plaintiff’s agent Willits was occupying the premises under such circumstances as amounted to a legal possession or whether Perkins had the legal possession by virtue of an executed surrender. We think the evidence should have been received and that the Supreme Court was right in reversing the judgment of the District Court.
For reversal — Yone.