Granberry v. Storey

WILLSON, Chief Justice. — Appellant sold to appellee a tract of 138% acres of land, same being a part of the J. Hopkins survey in Bowie County. As payment in part for the land appellee executed and delivered to appellant certain promissory notes, the payment of which was secured by a vendor’s "lien expressly retained by appellant on the land. In a suit brought by him on the notes appellant recovered a judgment against appellee foreclosing the vendor’s lien on land described as a tract of 138% acres of the Hopkins survey, beginning at the northeast corner of the Pickens 112 bi-acre tract out of said Hopkins survey, and running thence north 475 varas to a corner on the south boundary line of lot No. 20 of a subdivision made of said Hopkins survey; thence east 1,662 varas to the east boundary line of said Hopkins survey; thence south with said line, etc. An order directing the sale of .the land described in the judgment was issued, and at the sale subsequently made by the sheriff, as directed by the writ, appellant became the purchaser thereof. Only a part of the tract sold by appellant to appellee was included within the boundaries of the tract described in the judgment and in the order of sale issued thereon. On the part not so included appellee lived with his family. After the purchase by appellant at the sheriff’s sale of the land described in the judgment, a writ describing the land as the judgment described [11] it, and directing the sheriff to place appellant in possession thereof, was issued. Over his protest against it, on the ground that the land he resided upon was not the land described in the writ, by virtue of •the writ appellee was forcibly ejected therefrom and appellant was placed in possession thereof. Appellee then sought by an action of .forcible entry and detainer to recover the possession of the land from which he had been so ejected. A trial before a justice of the peace resulted in his favor, as did a trial in the County Court, on an appeal prosecuted by appellant. In the latter court the judgment, in addition to awarding appellee relief by a restitution of the premises from which he had been ejected, awarded him damages in the sum of $116. After stating the case as above. — Our statute denounces as guilty of a “forcible entry” any person who “shall make an entry into any lands, tenements or other real property, except in cases where entry is given by law, or shall make any such entry by force.” Sayles’ Stats., art. 2519. It defines a “forcible entry, or an entry where entry is not given by law,” as “an entry without the consent of the person having the actual possession.” Sayles’ Stats., art. 2520. It was not disputed that at the time he was ejected therefrom appellee was in actual peaceable possession of the premises in question. It was not disputed that he was ejected therefrom without his consent and over his protest. On the contrary, it appeared, without dispute that, when appellant and the officer entered upon the premises and demanded of appellee that he vacate same and deliver the possession thereof to appellant, appellee refused to do so, and that thereupon the officer “went into his (appellee’s) residence and loaded his household goods and all of his personal effects into wagons and hauled them off of said premises, and unloaded them in the woods on the side of the public road, and left them there.” It so appearing that appellee was in actual possession of the premises, and that he was forcibly ejected therefrom by appellant, who, the record shows, at once took and retained possession of same, we think it is clear that appellee was entitled to resort to the statutory action of forcible entry and detainer to recover possession of the premises, and, having resorted to same, to a judgment restoring him to the possession thereof. Assuming that the entry made by appellant on the premises was under “color of lawful authority,” appellant insists that the action was not maintainable. The assumption made, we think, is not warranted by the record. A writ directing an officer to place a party in possession of specified land is not “color of authority” for placing the party in possession of other and different land. The writ in the officer’s hands here was not like the one in the hands of the officer in Wyatt v. Monroe, 27 Texas, 269, cited by appellant as supporting his contention. There the writ covered the premises in dispute, and the contention made was, it seems, that it had been wrongfully issued. It was held, and properly so, we think, to be color of authority for the acts of the officer. On its face, evidently, it had the appearance or semblance of being a valid writ directing the officer to place the party in possession of the premises in controversy. Such was not the character of [12] the writ here. It did not purport on its face to direct the officer to place appellant in possession of the premises occupied by appellee, but, instead, directed him to place appellant in possession of other and different premises. And for another reason the case cited is not applicable here. There the plaintiff had acquiesced in the action of the officer dispossessing her. Here the plaintiff, over his protest, was forcibly ejected from the premises. The writ not being authority, nor color of authority, for the act of appellant and the officer, and appellee having been forcibly ejected from" the premises, we think it is of no importance that appellant may have been entitled to a judgment foreclosing his lien on the land in dispute, and that it was due entirely to a mistake or oversight that he had not obtained such a judgment. The court was 'not called upon nor entitled to consider such matters in determining the controversy. Beferring to statutes of forcible entry and detainer, the Supreme Court of the United States, in Iron Mountain & Helena B. B. Co. v. Johnson, 119 U. S., 613, 30 Law cd., 505, said: “The general purpose of these statutes is that, not regarding the actual condition of the title to the property, where any person is in the peaceable and quiet possession of it, he shall not be turned out by the strong hand, by force, by violence or by terror. The party so using force and acquiring possession may have the superior title, or may have the better right to the present possession, but the policy of the law in this class of cases is to prevent disturbances of the public peace, to forbid any person righting himself in a case of that kind by his own' hand and by violence, and to require that the party who has in this manner obtained possession shall restore it to the party from whom it has been so obtained; and then, when the parties are in statu quo, or in the same position as they were before the use of violence, the party out of possession must resort to legal means to obtain his possession, as he should have done in the first instance. This is the philosophy which l.ies at the foundation of all these actions of forcible entry and detainer, which are declared not to have relation to the condition of the title or to the absolute right of possession, but to compelling the party out of possession, who desires to recover it of a person in the peaceable possession, to respect and resort to the law alone to obtain what he claims.” And see Zuercher v. Starts, 115 S. W., 1176; McRae v. White, 42 S. W., 794; Merki v. Merki, 212 Ill., 121, 72 N. E., 9; Chisholm v. Weise, 5 Okla., 217, 47 Pac., 1087; Laird v. Winters, 27 Texas, 440, 80 Am. Dec., 620. The judgment is affirmed. Affirmed.