Gray v. Finch

Sanford, J. This is a writ of error, brought by the defendants below, to obtain the reversal of a judgment, recovered against them, in a proceeding for a forcible entry and detainer. The questions, arising on the trial of the cause, are presented by a bill of exceptions. 1. The parties were at issue upon the question of póssession; the defendants contending that Mrs. Gray was in possession, claiming title under the levy of an execution in her favor; the plaintiff claiming that Mrs. Gray had never entered at all, or, if she had, that it was in his absence, and was no interruption of his actual possession. The plaintiff testified as a witness, and, on his cross-examination, said that, when informed by Fitch, one of the defendants, that said Fitch and Mrs. Gray had sometime before driven his cattle off from the land in controversy, in his absence, he informed said Fiteh that, if that was so, he, said Fitch, would be sued. The defendants then proposed to enquire of the plaintiff, whether he did not know, at the time he was so informed by said Fitch, that Mrs. Gray had previously levied an execution on said premises. That enquiry was objected to, and prohibited by the court. Now, from the plaintiff’s testimony already given, in connection with his claim upon this point, the natural inference would be, that Mrs. Gray could not have openly made an entry, or taken and held the actual possession of the property, prior to the conversation with Fitch, because, if she had, the plaintiff must have known it, and his possession must have been interrupted* And, although an answer to the — 511 — proposed enquiry might not have been of any great importance, yet, for the purpose of repelling such an inference, if for no other purpose, it was admissible. Besides, the enquiry was proposed in the course of a cross-examination, in which considerable latitude is allowable. The witness, also, was himself a party in the cause, and was not entitled to a very rigorous application of the rule of evidence in his favor. The court below seems to have supposed that the evidence was offered for the purpose of making out a title in Mrs. Gray, but the bill of exceptions shows that this was a misconception. We think the enquiry ought to have been permitted. 2. The execution, offered by the defendants, in connection with the evidence of Mrs. Gray’s entry, and acts of ownership, or possession under it, was admissible for the purpose for which it was offered. The entry, or possession of one who has a colorable title to land, furnishes a presumption, that he entered, or holds, claiming under that title,—in his own right and not in the character of a trespasser. To show the nature or character of the possession claimed by Mrs. Gray, therefore, it was proper to produce the evidence of the title under which she entered. An unacknowledged deed, and the record of a judgment in a suit between other parties, are admissible as part of the evidence, to evince the nature of a possession taken, pr held under such deed and judgment. Rogers v. Hillhouse, 3 Conn. R., 398. And in connection with proof of acts of possession, the execution was evidence, to show the extent of the possession claimed by Mrs. Gray, as it showed the extent of the title under which she claimed. Lee v. Stiles, 21 Conn. R., 500. We think, therefore, that the court below erred in excluding that execution. 3. The statute, (tit. Civil Actions, § 144,) provides, that it shall be the duty of the court to decide all questions of law, arising in the trial of a cause, and in committing a cause to the jury, to direct them to find accordingly. This is a wise — 512 — and salutary provision, essential, under our forms of procedure, to the due administration of justice. And, although we are disposed to give to the language and determinations of the inferior tribunals the most favorable construction, yet as we have upon this record, the entire address of the court in committing this cause to the jury, we can not but see that this duty, enjoined by the statute, was entirely misapprehended or utterly disregarded. The forcible entry is charged to have been committed on the 16th of June, 1853, and this proceeding was commenced on the 15th of December, 1853. On the trial, the defendants introduced the record of a judgment recovered by Mrs. Gray, in an action, in which she claimed to have been in possession of the land in question, from the 10th of July, 1852, to the 23d of April, 1853, and charged Finch with the commission of divers trespasses on said land, between those dates. That action was commenced on the 25th of April, and tried on the 17th of May, 1853. Finch pleaded that he was in possession, at the time the action was brought, and at the time of the trial. Mrs. Gray demurred, and judgment was rendered in her favor. It is obvious that the defendant’s plea in that case, was no answer to the plaintiff’s action. The only fact averred in it, that the defendant was in possession at the commencement of the suit, and at the time of the trial, was immaterial, and irrelevant to the issue. And it is equally clear that Mrs. Gray can not be prejudiced in this case,.by her demurrer in that. A demurrer admits only facts well pleaded, and sufficient in substance, and merely for the purpose of presenting an issue in law to the pourt, that their legal sufficiency may be determined, and not to the intent of concluding the party demurring in any other suit. As a rule of evidence, it admits nothing. Gould Plead., 461, 462. Pease v. Phelps, 10 Conn. R., 68. The material averments in the declaration were unanswered and virtually admitted. The record of that recovery, — 513 — therefore, was, as between the parties to it, and their privies, conclusive evidence that Mrs. Gray was rightfully in, and Finch out of, possession of the premises, at the time of the commission of the trespasses, for which the recovery was had; and as the state of things once established by proof is presumed to continue until the contrary is shown, (1 Greenl. Ev., § 41,) that record was evidence conducing to prove, and from which the jury, in the absence of satisfactory proof to the contrary, would be authorized to presume and find, that, at the time of the alleged forcible entry, the possession of the property continued in Mrs. Gray, and was not in said Finch. And we think the court ought so to have charged the jury. ' 4. The omission of the court, complained of in the sixth and seventh assignments of error—to charge the jury that, if Mrs. Gray, after the levy of her execution, peaceably entered into and took possession of the land, having title and the right of possession, the law vested the actual possession in her, of which she could not be devested by any subsequent entry of Finch, because such subsequent entry would be a trespass and a wrong,—was no error. The question whether Finch was in actual possession, at the time of the alleged forcible entry, or not, was a question of fact for the jury. Actual possession has no necessary connection with legal title. Nor is it dependent upon the character of the entry, whether that were peaceable or otherwise. It is taken and held by the party, in fact. The law has nothing to do with vesting it. If Mrs. Gray, after a valid levy of her execution on the land, made a peaceable entry, and peaceably took possession, Finch could maintain no action against her for such entry, because she had both the legal title, and the right of possession, while Finch had neither. But if such entry, though peaceable, was without the consent’of Finch,—then in actual possession,—and if Mrs. Gray — 514 — retained her possession against Finch, with force and strong hand, then sne was liable at his suit for a forcible detainer. 5. The plaintiff claimed that he had been in possession of the land, holding it in his own right, for more than five years next before the alleged forcible entry. The defendants contended, and offered evidence to prove, that, if the plaintiff ever had possession of the property at all, it was only as the agent and servant of one Frederick Finch, and not in his own right; and they prayed the court to charge the jury, that, if they should find that the plaintiff held possession, if at all, only as the agent and servant of Frederick Finch, he could not maintain the prosecution, but that it should have been brought in the name of said Frederick. The possession of an agent, or servant, is the possession of his principal. • If, therefore, the plaintiff occupied, only as the agent or servant of Frederick Finch, then Frederick Finch, and not the plaintiff, had, in contemplation of law, the actual possession, and the plaintiff could not maintain the action, and so the jury should have been instructed. 6. The plaintiff below demanded a verdict against all of the defendants, for the forcible detainer charged in the third count, and he claimed to have proved that, before the alleged forcible entry, they had entered into a combination and an agreement, under'and in execution of which, they made the forcible entry, put him out of possession, and Mrs. Gray entered and put Northrup in, and in execution of which, Northrup afterwards, by threats and violence, prevented him from retaking the possession of the property. The defendants denied the combination and agreement charged, and claimed that neither Mrs. Gray, nor Fitch, had any thing to do with, or any knowledge of, the alleged threats or violence of Northrup, or any possession of, or interest in, the land at that time. And that Mrs Gray had, before that time, given Northrup a deed of the land, and that he "as then holding possession of it, in his own right. And — 515 — they prayed the court to charge the jury, that if Northrup did the acts complained of, after Mrs. Gray had conveyed the property to him, and while he held it in his own right, and after Mrs. Gray and Fitch had ceased to have any thing to do with the land, they ought not to find either Mrs. Gray or Fitch guilty of the forcible detainer, on account of the acts of Northrup. \ Now, if the acts of Northrop were, as the plaintiff claimed, done in pursuance and in execution of a prior agreement between all the defendants to that end, then the aets of Northrop were, in legal contemplation, the acts of all. But the charge prayed for would have left entirely out of consideration the effect of such agreement on the liability of Mrs. Gray and Fitch, for the acts of Northrup, and we think such charge ought not to have been given, and that in withholding it, the court below committed no error. 7. But we think that the remarks, actually made by the court, were calculated to mislead the jury. The jury were told, that if, in their opinion, the plaintiff was in the actual and lawful possession, he was entitled to their verdict. Thus making the whole case to depend upon the question of possession, regardless of the equally important enquiry as to the manner and character of the defendants’ entry and detainer. The jury should have been instructed, not only that the plaintiff must prove himself in possession of the premises at the time of the entry, but also prove an entry by the defendants with what is called strong hand,—as, with an unusual number of people, with weapons, with menaces,—or accompanied with some circumstances of actual violence, calculated to intimidate the plaintiff, and deter, him from asserting or maintaining his right. And that an entry, which has no other force than such as is implied by law in every trespass, is not a forcible entry within the meaning of the statute. And that, to make a detainer forcible, the same kind and — 516 — degree of force, or indications of violent designs, must be exhibited. 1 Russ. on Crimes, 286, 288. There is manifest error in the record of the judgment below, and that judgment must be reversed. In this opinion the other judges concurred. Judgment reversed.