Harrington v. Scott

By the court,' Whippe-e,- J.- The transcript shows that the píairitiff below instituted proceedings' against Harrington and Young, under the forcible entry and detainer act. The complaint filed with the justice does not appear in the re-' turn, it having, as the parties state, been lost. Enough appears, however, to show that the proceedings were under the' provisions of the 1st,-2nd and 3rd secs, of chap. 5, tit. 3, part 3 Rev. Stat.- The form prescribed by statute for the warrant to be issued,- contemplates that the substance of the complaint should- be inserted therein! The warrant,among other things; recites that Scott was in- the quiet and peaceable possession of lots number three and twelve, in the village of Port Huron ; and that being so' quietly and peaceably possessed, the said Harrington and Young,-with foreffand arms, and with strong-hand and multitude of people, made forcible' entry into and upon the lands, &c,, and still do with strong hand detain- the same. Without noticing the various points made by counsel upon the argument, it will be sufiicient to consider the case upon- its merits, The [18] evidence shows that on the 24th of October, 1845, Scott, accompanied by one Follensby, repaired to the premises, and that the former demanded of Young the keys of the two buildings situated thereon; that Young gave to Scott the key of the bake-house, and upon being asked where the key to the other building' was, replied that he did not know, but supposed that Harrington had it. Young, upon being requested by Scott to remove some effects- out of the building,' replied that he would not, as he had nothing to do with it; Scott at the same time saying that he wanted possession of the building: that Scott having gone to the shop of one Saunders,, soon returned with some tools, and with' a hammer knocked the door of the building open. He then directed Saunders to take off the lock on the door and replace-it by another, which being done, the door was locked, and the key handed to Follensby by Scott, with directions to take care of the premises. Follensby further testified, that on the 27th October following, Harrington and Young went to the premises, and that he saw Harrington “ pound ” on the door of the building, which was opened,- and both then entered. There was no evidence whatever to show that Scott had any interest iff the premises, or that he was ever in the possession of the buildings referred to by the witnesses. The question now arises, whether the jury, under such evidence, were authorized to render a verdict of guilty against the defendants. We think they were not. The evidence, if it shows anything, proves conclusively that Scott was a mere intruder; that he obtained possession of the buildings by violence ; and that his actual possession, thus obtained, continued but a few minutes. Scott then seeks to dispossess the defendants-and obtain restitution of the buildings, by a proceeding under the provisions of the statute above referred to. In the first place, the allegation in theeomplaint, that he was-in the quiet and peaceable possession of the premises, is proved, if at all, by the testimony of his own witness, who-swears that this peaceable and quiet possession was obtained by knocking tbe door open with a hammer, while Harrington, it is fail- to infer from the evidence, was in possession. How it is very clear, that a possession acquired in this peaceable and quiet ivay, does not constitute such a possession as would enable a party to maintain trespass under the facts disclosed in the return. A party canüot make a possession,thus acquired, the ground-work of an action. If he could, then should [19] we hold our homes by a precarious tenure. Beside, what evidence ia there to maintain the allegations contained in the complaint, that the defendants, with force and arms, and with strong hand and multitude of people, made forcible ‘entry, &c., and with strong hand detain, &c. 3 The summary proceeding provided by our statute is a substitute for a proceeding hy indictment in England : it is in its nature a criminal proceeding, and the same proof is required to convict a party under such a proceeding, as would he required to convict him if indicted. The language of the complaint is not satisfied hy proof that one of the defendants pounded on the door of the building: there should have been -proof of such facte as would amount to a breach of the peace: there is an entire absence of proof going to show, either that the entry was made by the defendants with strong hand and multitude of people, or that the premises were with strong hand detained by them. The testimony fully establishes the faet, that the defendants repaired alone to the premises, and that hut one of them, without doing any act calculated to excite -a breach of the peace, re-entered into possession. But it is useless to pursue the subject auy further: the plaintiff below has sought to predicate a right to obtain restitution of premises, the possession of which he first acquired by. violence and wrong j and for this reason, if no other existed, the judgment must he reversed. Judgment reversed.