Harris v. . Sneeden

Avery, J. — after stating the facts: Issues are framed in order to enable a jury to determine disputes as to the material facts arising out of the denial in an answer of the allegations of a complaint. Every material allegation of the complaint, not controverted by the answer, shall, for the purpose of the action, be taken as true. The Code, § 268. The facts upon which the judgment of the Court is predicated, are the findings of the jury, and the admissions, either direct or by failure to denj’-, made in the pleading. The plaintiffs moved the Court for judgment for nominal damages, because it was found by the jury that the feme plaintiff was the owner and was in possession of the premises at the time of the alleged trespass, and it was admitted in the answer, that, at the time when the defendants entered, they erected a small building and occupied it. The ownership, the constructive possession of the plaintiffs, and the acknowledgment by defendants of entering unlawfully, and building and living in a house on the land, would constitute a sufficient foundation for a judgment for nominal damages and costs in favor of the former, if the allegations of the complaint, aided by the answer, were sufficient to support the findings of fact. It is conceded that the title and possession of plaintiffs were controverted by the answer, and the responses to the first and second issues were favorable to the plaintiffs. Did *375 the plaintiffs sufficiently allege that the defendants had committed a simple, as distinguished from a forcible, trespass? If they did, or, if the language of the complaint is not very clear — but the defendants have answered in such a way as to amount to a denial that their entry was unlawful because it was under a good title, though they admit actual entry without force — plaintiffs are entitled to the judgment demanded. Garrett v. Trotter, 65 N. C., 430; Knowles v. Railroad Co., 102 N. C., 66; Johnson v. Finch, 93 N. C., 205. In Knight v. Haughtalling, 85 N. C., 17, Justice Ruffin, for the Court, says: “ We have not failed to observe that the answer of the defendants contains but a single prayer for relief, and that for a rescisión of their contract. But we understand, that, under The Code system, the demand for relief is made wholly immaterial, and that it is the case made by the pleadings, and facts proved, and not the prayer of the party, which determines the measure of relief to be administered, the only restriction being that the relief given must not be inconsistent with the pleadings and proofs. In other words, the Court has adoptf-d the old equity practice, when granting relief under a general prayer, except that now no general prayer need be expressed but is always implied.” In Dempsey v. Rhodes, 93 N. C., 128, the present Chief Justice, delivering the opinion, says: “ Indeed, in the absence of any formal demand for judgment, the Court will grant such judgment, as the party may be entitled to have' consistent with the pleadings and proofs.” It is clear that the plaintiffs have alleged in paragraph ten of the complaint an unlawful entry and trespass, which is denied in the answer. In order to make this appear distinctly, we can put in parenthesis, or omit, all surplusage in the material portions of paragraphs numbered ten of complaint and answer, and show that the addition of the language charging force merely qualifies the declaration for *376 simple trespass included in tlie complaint, and that defendants deny that they have trespassed with or without force. The plaintiffs complain “that defendants entered upon their premises, the island aforesaid, * * * and proceeded to erect a building on the land.” The defendants answer “that, in the midst of this discussion, they learned, for the first time, that the plaintiff George Harris set up some claim, or pretence of claim, to said Hammocks, and thereupon they consulted counsel, and, acting under his advice, they proceeded to erect a small building upon their property, the said Hammocks, and to occupy the same, * * * and continued to occupy the same * * * until unlawfully ejected by the Sheriff, as aforesaid, under an arrest and bail proceeding in this cause.” By the admission thus made, it not only appears that the plaintiffs have alleged a simple trespass, but the defendants interpreted the paragraph (10) of the complaint to charge them with an unlawful entry upon land in the constructive possession of plaintiffs. Hence, defendants did not, in their answer, content themselves with denying that plaintiffs had the actual possession, but confessed the entry without force, and justified it under title in the defendant Sneeden. True, they deny that the entry was accompanied by any force, threats or demonstration of force, and, if they had simply added an averment that the plaintiffs were not in the actual possession, it would have demonstrated the fact that they understood the declaration of the cause of action to be in the nature of forcible trespass. But, when the defendants, after having denied the title of the plaintiffs and controverted their rights under particular conveyances in previous paragraphs of their answer, averred in paragraph ten that they entered, peaceably,- in pursuance of the advice of counsel to assert their own title, and erected and occupied a house on the land, they acknowledged the entry and attempted to avoid the claim of constructive possession by setting up title in themselves, which, they were advised, was good. *377 The doctrine of aider would, therefore, apply, even if it is not perfectly clear that the plaintiffs meant to charge a simple trespass. Knowles v. Railroad Co., supra; Garrett v. Trotter, supra; Johnson v. Finch, supra. In simple trespass, the plaintiffs, where not in actual possession, must show a good title to the premises in dispute, and the legal title, when shown, will draw to it the possession, if there is no adverse possession. London v. Bear, 84 N. C., 266; McCormick v. Moore, 1 Jones, 16; Cahoon v. Simmons, 7 Ind., 189. On the other hand, possession alone will support, and actual possession must be shown to maintain an action for forcible trespass. Patterson v. Bodenhammer, 11 Ind., 4. The plaintiffs, if they had intended to declare for forcible trespass, would have been content to claim that they were in the actual possession of the land when the alleged entry was made with force and threats, &c., but, in setting out their claim of title, they evinced a purpose, evidently understood by the defendants, to prove and rqly on constructive, if they could not show actual, possession. But if the plaintiffs did not understand what was the appropriate relief to which the facts alleged, if proven, would entitle them until after verdict, it does not impair their right to such judgment as the facts found and admitted would warrant the Court in rendering. In Patrick v. R. R. Co., 93 N. C., 420, the late Chief Justice Smith, for the Court, says, as to the holding of the Court below: “ These rulings seemed to be a very strict enforcement of the former and superadded principles of pleading, and to ignore the adjudication made in Jones v. Mial, 82 N. C., 252, and subsequent supporting cases, which declare a plaintiff entitled to such relief as the facts stated in the complaint will admit, while he may misconceive the way in which it is to be afforded.” In Moore v. Nowell, 94 N. C., 265, this Court held that it was not error where a plaintiff stated more than one cause of action in one paragraph, and that, if the allegations *378 of a complaint indicated the proper judgment, the Court would grant it “ without regard to an inappropriate demand for judgment, or in the absence of any formal demand.” The argument against the right of plaintiffs to judgment for nominal damages proceeds upon the idea that a plaintiff cannot recover in an action for possession of land where title and possession are not shown to be in himself, and that no issue involving the question of simple trespass was submitted. Out of the abundance of caution the plaintiffs moved the Court to be allowed to amend, so as to state more clearly and separately, that defendants had unlawfully entered, breaking plaintiffs’ close. They had already demanded damage and costs as their relief. The defendants denied, and put the plaintiffs to the trouble and expense of proving title in themselves, and the possession that a perfect title draws, while they charge, and the defendants acknowledge, that the latter entered upon the lands so held in the possession of the former, and built a house and occupied it. It is not denied that a simple trespass is thus conclusively shown. But it is contended for the defendants that it is not alleged in the complaint, because the plaintiffs say, not only that defendants unlawfully entered upon their close, but their entry was accompanied with force, and that they have slandered the title of the plaintiffs. To sustain this view would lead us backward towards the technical distinctions and formalities of the old pleading, where the law has declared the forms of action shall be abolished. We think, therefore, that his Honor erred in refusing to give judgment in favor of plaintiffs for nominal damages. Error.