Keyser v. Rawlings

Leonard, Judge, delivered the opinion of the court. The only questions relied upon in argument, in this case, relate to the exclusion of the evidence offered by the defendants below in relation to the circumstances under which the plaintiff-took possession of the lot in controversy, and to the right of a surviving plaintiff in this proceeding to recover all the damages sustained, and we think there is nothing in either objection that requires us to reverse the judgment. It is contrary to the fundamental principles of every system of civil law, to allow persons to enforce their own rights by strong hand. The law protects the possession of every one, no matter how acquired, from actual violence, and therefore even the true owner of land can not expel by force a wrongful possessor. The remedy provided by our law for such a wrong, is the summary proceeding by forcible entry and detainer, in which the relief afforded is a restitution o£ things to their former condition, by restoring the complaining party to the possession of which he has been deprived, and allowing him double compensation for the damages actually sustained. The principle upon which the remedy is given is stamped upon the face of the act in the emphatic declaration, that “ the merits of the title shall in nowise be inquired into.” Here, it seems to have been admitted that the plaintiffs had been in possession, and the only question litigated at the trial was, whether the possession had been abandoned before the defendants entered. The rejected proof showing that it was originally taken by the plaintiffs against right and so held, was, it is insisted, proper evidence to aid the presumption afforded by the other proof in the cause, that the plaintiffs, when they left the lot at night, did so with the intention of not returning [137] again, because, in point of law and morals, they ought not to have returned, and had no inducement to do so. To allow such proof however, we think, would be a palpable evasion of the law, and generally defeat its execution, and we' are clearly of opinion that it was properly excluded. In relation to the other point, it may be remarked that here there was a joint possession, and this possession, without any reference to the title of the party, is the thing protected. The suit is for a wrong to this joint right, and the suit did not abate, as was decided when the case was here before (18 Mo. 166) by the death of one of the parties, but survived to the surviving plaintiff; and we now think that, upon principle, the survivor must recover all the damages sustained. The question, as to the right of the estate of the deceased co-plaintiff to one half, is a question between other parties. It is enough for the defendants here that this judgment will protect them. The judgment, with the concurrence of the other judges, is affirmed.