Best v. Allen

Caton, C. J. We think both of the instructions given for the plaintiff are correct. In the first, the jury are told that if ■the defendant entered the plaintiff’s premises and willfully damaged his goods, they may give exemplary damages. It is argued that if the defendant entered in good faith, and under the belief that he had a right to enter and eject the plaintiff’s family, that his willful injury of the goods in doing so, should not subject him to smart money. We do not so understand the law. A willful injury of the goods is as much a ground for exemplary damages as a willful entry when the party knows he had no right of entry. The second instruction is this: “ That if they believe, from the evidence, that the plaintiff in this cause was in possession of and occupying the said premises as a homestead at the time of the execution of the mortgage from plaintiff to defendant, and that Frances E. Allen is the wife of said plaintiff, and was so at the date of the mortgage, and that she still continued to occupy the same as a homestead, the possession of the said Francis E. Allen is the possession of the plaintiff; and that plaintiff, under the act of the legislature entitled ‘Homestead,’ in force July 4, 1851, is entitled to retain possession of said premises, notwithstanding said mortgage, and the jury must find for the plaintiff.” As this mortgage was in effect a deed of trust, containing a power of sale, and under which the property was sold, it is insisted that it is not affected by the homestead law of 1851. That may be true; but this mortgage was executed in 1860, and consequently comes under the operation of the amendment of 1857, which, as we have decided at this term, in the case of Patterson v. King, applies to all conveyances, and makes the release of the homestead right by the wife necessary to the validity of all conveyances of the homestead. Under this decision this instruction was undoubtedly right. The plaintiff was, prima fade the owner of the land. We shall not review the evidence on the motion for a new trial. We are entirely satisfied with the verdict. Here was an unwarrantable attempt by the defendant to take the law into his own hands, in a case where he had no right to take the possession, and even if his title had been good, he should have brought ejectment to obtain the possession. And in removing the plaintiff’s goods we agree with the jury, that the evidence shows he did willful damage. All the circumstances of the case show an aggravated outrage. The judgment is affirmed. Judgment affirmed.