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Greeley v. Spratt-Opinion of Court.

dict was contrary to the evidence, and 2, that the amount of the damages is not warranted by the evidence.

It is contended that the testimony does not show that thie defendant continued to hold the possession of the premises after the dispossession at the date of the complaint.

The complaint was filed August 3, 1880. The testimony of Mr. Spratt is that he went into possession about the first of July, 1880, and had possession several weeks when he was turned out as detailed. Mr. Greeley says he had rented the room to Brown. Warriner says that at the request of Greeley he put plaintiff's goods out of the room and put Brown in possession, and Brown was in possession at the time Spratt came there in the morning. Brown says he had not been able to get possession until that time. The testimony thus leaves Brown in possession, having been put there at Mr. Greeley's request. There is no testimony going to show that plaintiff has since then been in possession, or that Mr. Greeley has transferred it to any person.

The natural presumption is that defendant or his tenant remains in possession, in the absence of proof to the contrary. If plaintiff has since had possession or the use of the property it was competent for the defendant to show it. The rental value is shown to be about fifteen dollars per month, and from July, 1880, to the time of the trial, November, 1882, about twenty-eight months, the rental value would be much more than $224, the amount of the verdict.

We think the jury was justified, if they believed Warriner's testimony, in finding that plaintiff had been put out of possession by defendant, and that defendant, by himself l's his tenant, withheld from him the possession at the date of filing the complaint, which was very soon after the ejectinent complained of.

Greeley v. Spratt-Opinion of Court.

The third ground of error is the ruling of the court in excluding the question by what means plaintiff obtained possession of the room, which question was asked for the purpose of showing that plaintiff was an intruder or trespasser. The statute provides that no person shall enter into lands or tenements but in case where entry is given by law, nor shall any person, where entry is given by law. enter with strong hand, but only in a peaceable, easy and open manner.

If any person shall enter in case where entry is not given by law, or shall enter any lands or tenements with strong hand, even in case where entry is given by law, the person turned out or deprived of possession by such unlawful or forcible entry, by whatever right or estate he held or claimed such possession, shall at any time within three years be entitled to the summary remedy provided. Chap. 1630, Act of 1868. The complaint was made under the provisions of this act.

It is not pretended that the plaintiff was a loafer or vagabond, intruding upon the house or premises of another in an unseemly or offensive manner, for the testimony shows that the plaintiff was peaceably occupying the room in question ás a law office with his books and furniture when he was dispossessed by putting his property out in the night and forbidden to enter, and by force prevented from entering.

The statute contemplates that a party so having peaceaEle possession shall not be thus forcibly ejected even where entry is given by law; that is, where the right to enter and possess has been determined by law, but only in a "peaceable and open manner.” The right to enter. based upon a paramount title or interest, cannot be tried in this proceeding

In the case of Gass vs. Newman, i Head, 136, the plaintiff in a proceeding like this, by an enclosure, had actual

Greeley v. Spratt-Opinion of Court.

possession of the land enclosed. The court says that . whether or not such possession was a trespass upon the defendant is a question not material to the determination cf the case. Admitting that it was a trespass, the law did not permit the defendant, by his own act, to arrest or obstruct the plaintiff's possession.

It is said in Lorimer vs. Lewis, Morris R., Iowa, 253, "it was contended in the course of the argument that the plaintiffs below in this case were themselves sheer trespassers, and much stress seemed to be laid on that circumstance. That fact, however, is in no manner mingled with this case. The action is not ejectment, but forcible entry and detainer, and may be brought by a trespasser even against the legal owner of the premises. All that is necessary to sustain the action is that the defendant should forcibly and illegally liave turned the plaintiff out of the premises."

This is sustained in Smith vs. Dedman, 4 Bibb, 192; Bloomfield vs. Reynolds, Id., 388; Krevet vs. Meyer, 24 Mo., 107; Denison vs. Smith, 26 Id., 487; Beeler vs. Cardwell, 33 Id., 84; King vs. St. Louis G. L. Co., 34 Id., 34; Langworthy vs. Meyers, 4 Iowa, 18; McCartney vs. Hunt, 16 I11., 76; Croff vs. Ballinger, 18 Ill., 200; Baker vs. Hays, 28 Id., 387; Seitz vs. Miles, 16 Mich., 456; Taylor's Land and Tenant, $787, n. 1; Chiles v. Stephens, 3 Mar. Ky., 340.

The statutes of these several States upon this subject are similar to our own. The ruling of the court in excluding the question is sustained by the authorities. The only case cited to us by counsel to sustain the contrary is The People vs. Reed, 11 Wend., 157; but by the statute of New York in force when that decision was made, the complainant must have had an estate of freehold or for a term of years, or some other right of possession, which must be stated and proved.

Greeley v. Spratt-Opinion of Court.

In People vs. Leonard, 11 Johns., 504, even under that statute it is held that in the case of a forcible entry it is of nc importance whether the seisin be by right or by wrong, nor whether the term of years be legal or not.

That portion of the charge excepted to, viz: “If the party entering has the right to the possession he must resort to the authority of law and obtain such possession," is alleged to be erroneous and misleading, because it would call upon the jury to find for the plaintiff although defendant did not enter by force. But the Judge in the same paragraph charged the jury that “the peaceable possession and the forcible entry are the questions at issue.” The proposition of the charge was that if plaintiff was in peaceable possession the defendant could not resort to force to oust him except by the process of law; that force without process tended to a breach of the peace. The statute itself says that no person shall invade the possession of another except where entry is given by law, and that in a peaceable, easy and open manner and without strong hand.

We find no substantial objection to the charge of the court. It submitted the whole issue of fact to the jury lipon the testimony and assumed nothing as to the facts.

There was testimony given by defendant which, by itself, would go to show that he had not directed Warriner to reinove plaintiff or his goods from the premises. Yet Warriner was in defendant's service at the time, and he swears that everything he did was by defendant's direction. The jury have decided as to the facts and the liability of the defendant for the acts of Warriner.

Petty v. Mays et als.—Syllabus.

David Petty, APPELLANT, Vs. GEORGE H. MAYS ET ALS.,

EXECUTORS OF RICHARD JONES, APPELLEES.

1. When a court of equity having jurisdiction of parties and of the

subject matter in a suit to foreclose a mortgage, directs by its decree that the Master make sale of the property, and on such sale to execute and deliver a deed to the purchaser, and that upon the delivery of the conveyance the purchaser be let into the possession of the premises, the record of the decree and the deed

constitute evidence of title in the purchaser in an action of eject

ment against a third person not a party to the foreclosure suit. 2. The Master's deed in such case is evidence without showing a con

firmation of the Master's report of sale. 3. Certain tax deeds copied by the clerk and annexed to the record in

an ejectment suit tried before a referee, but which deeds are not identified by the referee in his record, or by a bill of exceptions, as the papers offered in evidence and rejected, cannot be considered upon appeal: nor can the refusal of the referee to permit a witness to testify as to the location and identity of the land described in the tax deeds be reviewed, because the deeds are not in the record, and this court cannot determine that the testimony

offered was necessary or proper. 4. A tax sale at which the owner of the land, or another person at

the request of the owner, whose duty it was to pay the taxes, bids in the property and afterwards obtains a tax deed under such sale, amounts only to the payment and satisfaction of

the tax, and confers no new title upon such purchaser. 5. Immaterial testimony, improperly admitted by a referee at the

trial, and not affecting the judgment, is not good ground for

granting a new trial. 6. In ejectment in this State the plea of not guilty puts in issue the le

gal title, and an inchoate or equitable right which might be available in equity cannot avail the defendant as against the le

gal title. 7. The possession of land by one who holds under an oral agreement

with the owner to purchase, cannot be an adverse possession as

against the owner of the legal title or his mortgagee. Appeal from the Circuit Court for Duval county.

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