Moring v. Ables

Coopeb, J., delivered the opinion of the court. This case presents two questions for decision: First, had the plaintiff, prior to his eviction by the defendant, acquired title to the locus in quo by adverse possession? second, if he had not and the defendant is the real owner, may the plaintiff, nevertheless, recover in this action because of the forcible entry of the defendant ? The facts relative to the possession of the lands by the plaintiff are, as stated by him, that in the fall of 1870 he purchased them from Sylvester Wilkie, agreeing by parol to pay him four hundred and fifty dollars as the purchase-money therefor; of this sum he was to pay one hundred and fifty dollars January, 1871; one hundred and fifty dollars January, 1872, and one hundred and fifty dollars January, 1883, and upon payment of the last sum was to receive a conveyance. He made one payment to Wilkie, and after his death paid other sums to his administrator, but the whole of the purchase-money has not been paid. He remained in possession until January, 1883, when he was forcibly evicted by the defendant, who had bought the land at a sale made by the administrator of Wilkie for the payment of the debts of the estate. • Under these circumstances it is well settled by an almost unbroken current of authorities that the plaintiff had not acquired title by adverse possession. Where a sale is made, whether by parol or by title-bond, and the conveyance is to be made only upon the payment of the purchase-money, there is an express reservation of the title by the vendor for the security of the purchase-money, and a recognition of such title by the vendee, and until the purchase-money is paid (or what is perhaps equivalent thereto, all right of action to recover it by suit is barred by limitation), the possession of the vendee is not adverse to the title of the vendor, but is by the contract under which the vendee enters, in subservience to and recognition of it. McCalahan v. Barrow, 27 Miss. 664; Stewart v. Benson, 30 Miss. 49; McQueen v. Ivey, 36 Ala. 308; Ormond v. Martin, 37 Ala. 598; Jackson v. Foster, 12 Johns. 490; Stamper v. Griffin, 12 Ga. 457; Woods v. Dille, 11 Ohio 455; Knox v. Hook, 12 Mass. [269] 325; Higginbotham v. Fishback, 1 Marsh. 506;. Brown v. King, 5 Met. (Mass.) 173; Den v. Kip, 2 Dutch. 351. Where, however, the vendee has executed his part of the agreement by payment of the purchase-money, his possession is from that time adverse to the vendor. Niles v. Davis, 60 Miss. 750; Brown v. King, 5 Metc. 173; Bryan v. Atwater, 5 Day 181. If it be admitted that all remedy for the collection of the purchase-money by suit was barred by limitation in January, 1876, (three years after the maturity of the last installment), and that the possession of the plaintiff then became adverse, it will avail him nothing, since he did not remain in possession ten years — the statutory period. Upon no matter that has fallen under our investigation is there a greater conflict of authorities than'upon the question of the rights and remedies of an occupant who has been forcibly evicted by the owner having an undoubted right to make a peaceable entry. The courts in America occupy radically different positions on it, and there is no little conflict of judicial expression in England. It is conceded by all, that after the entry into power of the Norman conquerors, a tenant under such circumstances had no civil remedy, and it is at least doubtful whether the owner was subject to indictment unless guilty of an actual breach of the peace in addition to the forcibly entry. 1 Russell on Crimes 420; Rex v. Wilson, 8 T. R. 364. But by 5 Rich. 2, c. 8, it was declared that “ none shall make entry into any lands and tenements but in case where entry is given by law, and in such case not with strong hand nor with multitude of people, but only in a peaceable and easy manner,” on pain of imprisonment, etc. Upon the change wrought by this statute the conflict of authority has arisen. By some courts it is held that, since the act of entering by force is made unlawful, no right can arise from it, that “ a lawful possession cannot be acquired by an unlawful act,” and therefore that the possession so acquired cannot be interposed by the owner in defense, in any character of action. The leading case announcing this view is Destin v. Cowdry, 23 Ver. 631, in which Judge Redfield, in an ardent and exhaustive opinion, contends that [270] this is the conclusion of the English courts. See also Reedy v. Purdy, 41 Ill. 279. Another view, sustained probably by the weight of English authority, is, that though the tenant may recover damages against the landlord for any trespass against his person or property committed in making the forcible entry or in evicting the tenant after such entry, yet he cannot recover for any damage done to the premises, since to an action of trespass quare clausum a plea of liberum tenementum could be successfully interposed by the owner, nor can he recover possession of the premises in any other manner than that provided by the statute against forcible entry and unlawful detainer. Newton v. Harland, 1 Man. & Gran. 644; Pollen v. Brewer, 97 E. C. L. R. (7 J. Scott, N. S.) 371; Beddell v. Maitland, 17 L. R., Chy. Div. 174, and cases therein reviewed. In America the weight of authority, says Mr. Washburn (1 Wash, on Real Prop. 538), is to the effect that “if the owner of land wrongfully held by another enter and expel the occupant, but makes use of no more force than is reasonably necessary to accomplish this, he will not be liable to an action of trespass quare clausum, nor for injury to the occupant’s goods, nor for assault and battery, although in order to effect such expulsion and removal it becomes necessary to use such force and violence as to subject him to indictment at common law for a breach of the peace, or under the statute for making forcibly entry.” The authorities cited by him profess, in the main, to be supported by the case of Newton v. Harland; but this case, according to the latest review of it by the English court which has fallen under our observation, decided “ that there is a good cause of action whenever, in the course of a forcibly entry, there has been committed by the person who has entered forcibly an independent wrong, some act which can be justified only if he was in lawful possession.” This is the language of Fry, Chancellor, in Beddell v. Maitland. Proceeding, then, to apply the principle to the case before him, he continued“ I come, therefore, to the conclusion that, in respect of his claim for damages for the forcibly entry and eviction, the defendant cannot succeed; but that, in respect of his claim for damages done [271] to his furniture, which the plaintiff could only justify by a lawful possession, 4he defendant is entitled to succeed.” Dismissing from consideration all questions except that presented by this record, it appears that the courts of Vermont and Illinois stand alone in holding that a tenant who continues unlawfully in possession can, as against the owner who has made a forcibly entry, recover damages in an action of trespass quare clausum, or the possession of the premises by ejectment. 1 Wash, on Real. Prop. 538, and authorities cited in note 3. Aside from the decided weight of authority by which the opposite view is sustained, it is especially applicable in this State, since with us the action of ejectment is no longer a mere possessory action, but is one in which the title is tried, and a judgment in which would conclude not only the question of possession but also the right of title. Code of 1880, § 2513. We are, therefore, of opinion that ejectment cannot be maintained by the plaintiff, but that to recover possession of the premises he must resort to the action of unlawful entry and detainer. Judgment reversed.