Allen v. Keily

• Citation: 24 A. 776,17 R.I. 731
• Parties: ALLEN et ux. v. KEILY.
• Decision Date: 04 June 1892
• Court: Rhode Island Supreme Court

24 A. 776

17 R.I. 731

ALLEN et ux.

v. KEILY.

Supreme Court of Rhode Island.

June 4, 1892.

Suit by John Allen and wife against Owen Keily. Judgment for plaintiffs. Defendant petitions for a new trial. Granted.

John M. Brennan, for plaintiffs.

George J. West and John Palmer,for defendant.

TILLINGHAST, J. The only question raised by the exceptions taken to the rulings of the court in this case is whether a landlord can forcibly eject a tenant from his premises, after the expiration of the tenancy, if the tenant holds possession, in good faith, under a color and reasonable claim of right. The defendant requested the court to charge the jury as follows, viz.: First. "It the landlord enter and expel the occupant who wrongly holds a tenement, but uses no more force than is reasonably necessary to accomplish this, he will not be liable to an action of assault and battery, although, in order to effect such expulsion and removal, it becomes necessary to use so much force and violence as to subject him to an indictment at common law for a breach of the peace, or under the statute for making a forcible entry." Second. "If the plaintiff was in possession, but the rent was due more than fifteen days after demand, the plaintiff was a mere trespasser, and could be expelled by the defendant." These requests were refused by the court, and the following was charged in lieu thereof, viz.: "One in possession under a reasonable claim and color of right, honestly believing it, has a right to maintain his possession, and no personal violence can be used to expel him." "If Mrs. Baldwin was in possession under a claim of right the defendant had no right to use any degree of personal force to expel plaintiff." In explanation of its charge, and refusal to charge as requested, the court stated the law applicable to the case on trial to be as follows, viz.: "That an owner has the right to put an undoubted trespasser off his premises. But if one is out of possession of property held by another, under a color and reasonable claim of right, he has no right to use personal violence to regain possession." "Hence, if Mis. Baldwin was in possession under a fair claim of right to remain as tenant, or under her husband's tenancy, on the ground that the defendant had money belonging to one of them in his possession, more than the amount of rent due, on account of which her occupation had been recognized, he had no right to use personal violence to eject her."

We think this was error. The question at issue, in so far as the tenancy in question was concerned, was whether or not it had been terminated. If it had, the plaintiff was a mere...