Reeder v. Purdy

• Decision Date: 30 April 1866
• Citation: 1866 WL 4581,41 Ill. 279
• Parties: DANIEL L. REEDER et al.v.ERASTUS S. PURDY AND WIFE.SAMEv.ERASTUS S. PURDY.
• Court: Illinois Supreme Court

41 Ill. 279

1866 WL 4581 (Ill.)

DANIEL L. REEDER et al.

v.ERASTUS S. PURDY AND WIFE.SAME

v.ERASTUS S. PURDY.

Supreme Court of Illinois.

April Term, 1866.

OPINION TEXT STARTS HERE

APPEALS from the Circuit Court of Kane county; the Hon. ISAAC G. WILSON, Judge, presiding.

The opinion of the court contains a sufficient statement of the cases.

Mr. S. W. BROWN, for the appellants, upon the principal question arising under the assignment of errors, contended that a person who is the owner of premises, and lawfully entitled to the possession of the same, may enter upon the person in possession, and remove him and his goods, with such gentle force as may be necessary for the purpose. Citing 4 Kent's Com. (3d ed.) marg. p. 118; Taylor v. Cole, 3 Term, 292; S. C., 1 H. Black. 555; Taunton v. Costar, 7 Term, 431; Overdeer v. Lewis, 1 Watts & Sergeant's; Harvey v. Brydges, 14 M. & W. 437 (Exchequer); Walton v. File, 1 Dev. & Bat. 567; Meriton v. Combs, 67 E. C. L. 788; 1 Hawk. 274; Jackson v. Stansbury, 9 Wend. 201; Wilde v. Cantellon, 1 Johns. Cases, 123; McDougall v. Sitcher & Weeks, 1 Johns. 44; Ives v. Ives, 13 Id. 235; Blackstone Com. marg. p. 214; and that a party is not liable in an action of trespass for exercising that right.

Mr. B. F. PARKS, on the same side.Messrs. WHEATON & SEARLES, for the appellees, insisted the law to be otherwise, that a person who is the owner of premises, even though he has the right of possession, has no right to enter upon another who is in the quiet and peaceful possession of such premises, and put him out by force, thereby taking the law into his own hands, in violation of the statute of forcible entry and detainer; and, if he does so, trespass will lie. Citing Justin v. Cowdry et al., 23 Verm. 631; Newton and wife v. Harland et al., 1 Man. & Gr. 644 (39 Eng. Com. Law, 581); Hilary v. Gray, 6 Carr. & Payne (25 Eng. Com. Law, 368); Faulkner v. Alderson, 1 Va. (Gilman) 221; 28 Ill. 387; 32 Id. 290.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

These two cases, although separately tried, depend upon the same facts and present similar questions, and it will be more convenient to dispose of both in one opinion.

In October, 1862, Reeder, claiming to be the owner of a house occupied by Purdy and his wife, entered it, accompanied by the other appellants, for the purpose of taking possession. Purdy was not at home. Mrs. Purdy refused to leave, whereupon Reeder commenced putting the furniture out of doors. She resisted this, and he seized her and held her by the wrists, while Baker, one of the co-defendants, continued to remove the furniture. This was somewhat damaged, and some slight injury was done to the wrists of Mrs. Purdy by the force applied in holding her. The appellants finally abandoned their attempt to take possession and withdrew.

Two actions of trespass have been brought, one by Purdy alone, and one by Purdy and wife jointly. The declaration in the suit brought by Purdy contains three counts, the first being for the assault upon his wife, the second for the injury to the personal property, and the third for breaking his close and carrying off his furniture. The declaration in the suit of Purdy and wife contains two counts, both of which are for the assault upon the wife. There were pleas of not guilty, and an agreement that all defenses might be made under them. A verdict for the plaintiff of $450 in one case, and $500 in the other was returned by the jury, and a judgment was rendered upon it, from which the defendants appealed.

It is insisted by the appellants that Reeder, being the owner of the premises, had a right to enter, and to use such force as might be necessary to overcome any resistance, and that he cannot be made liable as a trespasser, although it is admitted he might have been compelled to restore to Purdy, through an action of forcible entry and detainer, the possession thus forcibly taken. The court below instructed otherwise, and this ruling of the court is assigned for error.

We should not consider the question one of much difficulty, were it not for the contradictory decisions in regard to it, and we must admit that the current of authorities, up to a comparatively recent period, is adverse to what we are convinced must be declared to be the law of this State. But the rule can not be said to have been firmly or authoritatively settled even in England, for ERSKINE, J., observes in Newton v. Harland, 1 Man. & Gr. 644 (39 E. C. L. 581), that “it was remarkable a question so likely to arise, should never have been directly brought before any court in banc until that case.” This was in the year 1840, and all the cases prior to that time, in which it was held that the owner in fee could enter with a strong hand, without rendering himself liable to an action of trespass, seem to have been merely at nisi prius, like the oft-quoted case of Taunton v. Costar, 7 T. R. 431. Still this was the general language of the books. But the point had never received such an adjudication as to pass into established and incontrovertible law, and a contrary rule was held by Lord LYNDHURST in Hilary v. Gay, 6 C. & P. 284 (25 E. C. L. 398). But in Newton v. Harland, already referred to, the Court of Common Pleas gave the question mature consideration, and finally held, after two arguments, that a landlord who should enter and expel by force a tenant holding over after expiration of his term, would render himself liable to an action for damages. But the later case of Meriton v. Combs, 67 E. C. L. 788, seems to recognize the opposite rule, and we must, therefore, regard a question which one would expect to find among the most firmly settled in the law as still among the controverted points of Westminster hall.

In our own country there is the same conflict of authorities. In New York it has been uniformly held, that, under a plea of liberum tenementum, the landlord, who has only used such force as might be necessary to expel a tenant holding over, would be protected against an action for damages. Hyatt v. Wood, 4 Johns. 150, and Ives v. Ives, 13 Id. 235. In Jackson v. Farmer, 9 Wend. 201, the court, while recognizing the rule as law, characterize it as “harsh, and tending to the public disturbance and individual conflict.” KENT, in his Commentaries, states the principle in the same manner, but in the later editions of the work, reference is made by the learned editor, in a note, to the case of Newton v. Harland, above quoted, as laying down “the most sound and salutary doctrine.” In Tribble v. Trance, 7 J. J. Marsh. 598, the court held, that, notwithstanding the Kentucky statute of forcible entry and detainer, the owner of the fee, having a right of entry, may use such force as may be necessary to overcome resistance, and protect himself against an action of trespass, under a plea of liberum tenementum. On the other hand, the Supreme Court of Massachusetts has held, that, although trespass quare clausum may not lie, yet, in an action of trespass for assault and battery, the landlord must respond in damages, if he has used force to dispossess a tenant holding over. The court say “he may make use of force to defend his lawful possession, but being dispossessed, he has no right to recover possession by force, and by a breach of the peace.” Sampson v. Henry, 11 Pick. 379. See also Ellis v. Page, 1 Id. 43; Sampson v. Henry, 13 Id. 36; Meader v. Stone, 7 Metc. 147, and Moore v. Boyd, 24 Maine, 242. But by far the most able and exhaustive discussion that this question has received, was in the case of Dustin v. Cowdry, 23 Vt. 635, in which Mr. JUSTICE REDFIELD, delivering the opinion of the court, shows, by a train of reasoning which compels conviction, that, in cases of this character, the action of trespass will lie. And he also says: “whether the action should be trespass quare clausum, or assault and battery, is immaterial, as under this declaration, if the defendant had pleaded soil and freehold, as some of the cases hold, the plaintiff might have new assigned the trespass to the person of the plaintiff, and a jury, under proper instructions, would have given much the same damages, and upon the same evidence, in whatever form the declaration is drawn.” The case of Massey v. Scott, 32 Vt., cited as inconsistent with this case, does not in fact conflict with it. It only holds, that trespass quare clausum will not lie in behalf of a tenant for an entry not within the statute of forcible entry and detainer.

In this conflict of authorities we must adopt that rule which, in our judgment, rests upon the sounder reason. We cannot hesitate, and were it not for the adverse decision of courts, which all lawyers regard with profound respect, we should not deem the question obscured by a reasonable doubt. The reasoning upon which we rest our conclusion lies in the briefest compass, and is hardly more than a simple syllogism. The statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. Such entry is, therefore, unlawful. If unlawful it is a trespass, and an action for the trespass must necessarily lie. It is urged that the only remedy is that given by the statute,--an action for the recovery of the possession. But the law could not expel him who has entered if his entry was a lawful entry, and if not lawful all the consequences of an unlawful act must attach to it. The law is not so far beneath...