Jackson ex dem. Stansbury v. Farmer

By the Court, Nelson, J. It was decided by this court in Hyatt v. Wood, 4 Johns. R. 150, and the same principle was again applied in Ives v. Ives, 13 id. 235, that a person having a legal right of entry on land may enter by force, and though indictable for a breach of the peace at common law, or under the statute for a forcible entry and detainer, he is not liable to [202] a private action of trespass for damages at the suit of the person in possession without right, and who is thus turned out of possession. This position, apparently harsh, and tending to the public disturbance and individual conflict, is abundantly supported by authority, and must be considered the law of the land. 3 Black. Comm. 5, 174. 1 Hawk. 274. 7 T. R. 43. 8 Com. Law R. 280. 14 id. 59. It was the abuse of this summary power to right one’s self by entry, where the right of entry existed, which gave rise to the numerous English statutes against forcible entry and detainer, of which our old act was substantially a copy, arid in these acts, and the common law remedy by indictment, are to be found the only protection of the party thus forcibly dispossessed. They punish criminally the force, and in some cases make restitution of the possession ; 11 Johns. R. 509; 13 id. 340; but so far as the civil remedy is concerned, there is none but what is afforded by those acts. The action of trespass, like that of ejectment, is a possessory action, involving an inquiry into the right of possession to the premises in question, and was anciently the usual mode of trying the title to land or the right to the possession; and I concur with Chief Justice Spencer, in Jackson v. Seelye, 16 Johns. R. 200, that the principle decided in Hyatt v. Wood is strictly applicable to the action of ejectment. Indeed, this action, which was the remedy devised for a lessee of a term of yeai’s who was ousted from his term, was originally but an action of trespass in effect, and the recovery was in damages only for the dispossession, 3 Black. Comm. 199, 200; 2 Selw. 510; and I can perceive no reason why the ordinary action of trespass was. not used, except the difficulty which existed in the principle of that action, which requires the plaintiff to sustain it to shew himself in the possession of the premises in fact or in judgment of law, at the time of the injury committed. A disseisee cannot maintain trespass for an injury to the freehold till he has regained the possession, and the lessee was viewed in this character. Afterwards, the court determined the lessee should not only recover damages, but also his term, which soon brought the action into general use. Before the action of ejectment, as now understood, came’into use, this [203] possessory right to land was tried by writ of entry, or an assize ; and although the tenant might have entered into possession by a disseisin or intrusion, or the like, yet, if he could shew a right to the possession in himself, or in those under whom he made claim, he justified such entry. : 3 Black. Comm. 181, 2, 3. Another principle which I think applicable to the defence in this case is, that where the entry of a party is congeable, that is, where he has a right of entry, and in pursuance thereof, enters into the possession of land, he is thereby remitted to his title; not so where the right of entry has been barred, though he may have the title, for then he must resort to his action. Viner's Abr. tit. Remitter, G. F. There are many cases in the books where the tenant in possession is estopped from setting up his title in this action,to which it is not now necessary to refer, as they have no particular bearing upon the question under consideration. The ground upon which I place the decision of the case is that at common law the party who possesed the legal right of entry might enter by force, and defend his possession under his title, subject only to an indictment for a breach of the peace, or under the statute for the forcible entry, and to a restitution of the possession by virtue of the proceedings under that statute. The revised statutes have extended the remedy for a forcible entry and detainer, so that it now affords ample redress to every one in the peaceable possession of land, who has forcibly been dispossessed, without regard to title or right to possession. The People v. Van Nostrand, ante, 50. Hew trial granted.