Winn v. State, 55 Ark. 360

Winn v. State

55 Ark. 360 | Ark. | 1892

Hughes. J.

This is an appeal from a judgment of the Pope circuit court, convicting appellant of a violation of section 1808 of Mansfield’s Digest, which is as follows :

“ Every person who shall take or keep possession of any real estate by actual force or violence, without the- authority of law, or who, being armed with a deadly or dangerous weapon, shall by violence to any person entitled to the possession, or by putting in fear of immediate danger to his person, obtain or keep possession of any such real estate or property without legal authority, shall, on conviction, be adjudged guilty of a misdemeanor and be fined not less than, fifty dollars and be imprisoned not exceeding one year.”

D. F. Moore and R. L. Davis held possession of the real, estate described in the indictment by virtue of a lease executed by the appellant, C. M. Winn. The lease was read in evidence, and was as follows :

“ This indenture, made this 27th day of December, A. D.,. 1887, by and between C. M. Winn, and D. F. Moore and R. L. Davis, Witnesseth: That the said C. M. Winn hereby leases unto said D. F. Moore and R. L. Davis, the following described piece of land, to wit:

“ To hold for the term of six years from date ; said lease expiring on the 27th day of December, A. D., 1893. ' And the said D. F. Moore and R. L. Davis, for themselves, their executors and administrators, do hereby covenant to and with the said C, M. Winn, his heirs and assigns, that they will dig a ditch the entire length of said piece of ground, extending along its north line, said ditch to be eighteen inches wide at top, twelve inches wide at bottom and eighteen inches deep. That they will have said land cleared and ditch dug by the middle of the second year of the term of lease; that they will build a lawful fence around said land, and keep the said fence in good repair during the time of said lease; and in case they fail to comply with any of the foregoing stipulations, they agree to forfeit said lease. Said C. M. Winn also^ hereby leases unto the said D. F. Moore and R. L. Davis, the following described piece of land, to wit: * * * * To hold for the term of four years from this date, said lease expiring the 27th day of December, 1891. And the said D. F. Moore and R. L. Davis, for themselves, their executors and administrators, do hereby covenant, to and with the said C. M. Winn, his heirs and assigns, that they will enclose said piece of land with a lawful fence, and have said land in cultivation by the close of the first year of lease ; and that they will keep said fence in good repair until the close or expiration of said lease ; and if they fail to comply with any of the above stipulations, they hereby agree to forfeit said lease.

“ In testimony whereof, we have hereunto set our hands,, this 28th day of December, 1887.

“ Witness : “ C. M. Winn,

“ L. Russell. “ D. F. Moore.

“R. L. Davis.”

Moore and Davis entered upon the land under the above-lease, and remained iii possession during the years 1888 and 1889, and until they were dispossessed by appellant. On-the 5th day of February, 1890, they were served with a notice from appellant, declaring the lease forfeited, and prohibiting their going on the land in the future. A • month afterwards, appellant, in the absence of his lessees, re-entered upon the land; and when Moore and his brother, to whom Davis had assigned his interest under the lease, attempted to come upon the premises, he prevented their so doing by threatening to kill them with a gun, with which he had armed himself. The State offered testimony to show that the stipulations in the lease had been performed, and that therefore there was no forfeiture; appellant offered to prove that the stipulations had not been performed. The court refused to admit this testimony. The,, jury returned a special verdict, finding that the defendant held the land by force, as charged in the indictment. Motions in arrest and for a new trial were filed and overruled, exceptions saved and appeal taken.

i.- sufficiency °f indictment-for forcible deThere was a demurrer to the indictment which it is con-_ , . . tended should have been sustained, because it is said that it does not charge directly and positively that Moore, the tenant, had a valid written lease, and was entitled to possession. The statement in the indictment is as follows: “ For that, whereas, one D. F. Moore, then and there having a valid and existing written lease, and being entitled to the posession,” etc. This statement was not liable to be misunderstood, and the indictment charges the offense with such a degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case. Sec. 2106 Mansf. Digest. “A statement of the acts constituting the offense,.in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended,” is sufficient. Mansf. Digest, sec. 2121.

2. Right of rre-entry upon ^condition bro-Were the stipulations in the lease that Moore was to make improvements as therein provided by a specified time conditions or covenants ? The lease provides that if the lessees “failed to comply with any of its stipulations, they hereby agree to forfeit said lease.” This we understand and construe to mean that if the lessees failed to comply with any of the stipulations of the lease within the time therein provided, then their rights thereunder should cease, and that they would surrender possession of the premises to the appellant on demand. See Post v. Weil, 115 N. Y., 366-69-70 and 71. We hold therefore that the stipulations were conditions and not covenants. Upon the breach of their conditions did a right of entry accrue to the appellant? If he was the owner of the property, he had a right to possession, upon breach of the conditions of the lease under which the lessees held. Under such a condition he was certainly entitled to a re-enter for condition broken, though not to use force to effect the re-entry.

8. when land. 'lord may forci-biy defend pos-session. He used no force but took possession peaceably in the . absence of the tenants from the premises, and if he had the lawful right to possession peaceably acquired, he had the right to protect his possession by force, if necessary, as well against his former tenants as any one else proposing to take possession without right. A clearer case of a landlord’s right to use force can scarcely be stated than where a legal possession has been gained, and force is only employed to defend it. This is an undisputed right, according to a practically unanimous opinion wherever the question has arisen. 4 Am. Law Rev., 439. It is held in Vermont that “if one have the right to enter and take possession-of premises in the occupancy of another, his entry will be legal and not' contrary to the statute concerning forcible entry and detainer, if made while the other party is temporarily absent from the premises, leaving no one there.” Mussey v. Scott., 32 Vt., 82.

It follows that the testimony excluded by the court as to-the performance or non-performance by the lessees of the-appellant of the stipulations in the lease in reference to improvements was material and necessary to enable the jury to determine whether appellant’s entry was a lawful entry.. This question should have been determined by the jury upon evidence.

For the error committed in the exclusion of this testimony the cause is remanded for a new trial.