Collins v. Stanley

• Decision Date: 02 February 1907
• Parties: COLLINS ET AL. v. STANLEY
• Court: Wyoming Supreme Court

88 P. 620

15 Wyo. 282

COLLINS ET AL. v. STANLEY

Supreme Court of Wyoming

February 2, 1907

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

Action by J. S. Stanley against William Collins and Mrs. J. W. Card to recover damages for an alleged wilful and malicious trespass upon certain premises of plaintiff, and for consuming and destroying certain personal property thereon and for an injunction against a continuance of the alleged trespass. A writ of attachment was issued at the commencement of the action upon grounds stated in the opinion; and a temporary restraining order as prayed for was issued upon the order of the District Judge upon the filing of the petition. Motions were made to discharge the attachment and dissolve the injunction, and upon a hearing both motions were denied whereupon the defendants prosecuted error. The other material facts are stated in the opinion.

Affirmed.

N. R Greenfield, for plaintiffs in error.

A stipulation in a lease that the lessee will not underlet the premises or assign the lease without the written consent of the lessor, there being no provision for re-entry for a breach of the stipulation, constitutes a covenant and not a condition; and the lessor's only remedy for a breach is an action for damages. (7 Am. L. Rev., 240-263; Field v. Mills, 33 N.J.L. 254; Lynde v. Hough, 27 Barb., 415; Elev. Co. v. R. R. Co., 17 F. 200; Vannatta v. Brewer, 32 N.J. Eq. 268; Burnes v. McCubbin, 3 Kan. 221; Walsh v. Martin, 69 Mich. 29; Winkler v. Martin, 2 Kan.App. 621; Spear v. Fuller, 8 N. H., 174; Eldredge v. Bell, 64 Iowa 125; Bergland v. Frawley, 72 Wis. 559; Taylor, L. & T. (2d Ed.), 392.)

Conditions subsequent tending to destroy estates are not favored in law, and if reasonably doubtful whether a provision was intended as a condition subsequent or a covenant, the breach of which may be compensated in damages, it will be held to be the latter. (Land Co. v. R. Co., 100 Ala. 396; Maynard v. Polhemus, 74 Cal. 141; Scovill v. McMahon, 62 Conn. 378; Peden v. R. Co., 73 Iowa 328; Clement v. Burtis, 121 N.Y. 708; Post v. Weil, 115 N.Y. 361.) Under our statute (Sec. 2953) the written assignment of a lease may be in the form of an agreement, or order, or in any other form which the parties might use for such purpose. (4 Cyc., 37, 39.) Mrs. Card, therefore, had by the assignment from her husband the exclusive right to the possession of the property in controversy. When Card agreed to release to the lessor he had nothing to release, having previously assigned his interest. Mrs. Card was also in rightful possession by reason of a homestead estate in the leased premises. A homestead may consist of lands held under lease for a term of years, which interest cannot be conveyed under the statute (Sec. 3902-3904, R. S. 1899) unless the wife shall join. (Tyler v. Jewett, 82 Ala. 93; Lee v. Wilborne, 71 Tex. 500; Morgan v. Stearns, 41 Vt. 398; Pendleton v. Hooper, 87 Ga. 108; In re Emerson, 58 Minn. 450; Palto v. Cady, 12 Wis. 461; King v. Sturgis, 56 Miss. 606; Brew. Co. v. Smith, 26 S.W. 94; Maatta v. Kippola, 102 Mich. 116; Deere v. Chapman, 25 Ill. 610; Lozo v. Sutherland, 38 Mich. 168; Thomp. Homestead & Exemp., 174; Sec. 2770, Rev. Stat.; Whitlock v. Gosson, 35 Neb. 829; McKinzie v. Shows, 70 Miss. 388; Alt v. Banhalzar, 12 Am. St. 683; Poole v. Gerrard, 65 Am. Dec., 484; Sear v. Hanks, 14 Ohio St. 298.)

This action is purely an action for damages for injurious acts alleged to have been committed by the defendants, so that the plaintiff's right is limited to an action at law, and an injunction should not be granted to restrain injurious acts already committed, or where there is a complete and adequate remedy at law. Neither will an injunction lie to restrain a mere trespass where no irreparable injury will result therefrom, especially where such injury may be compensated in damages.

The affidavit for attachment is insufficient. (1) By alleging that defendant is indebted it fails to designate the particular defendant so indebted. (2) The mere statement of the statutory ground that the defendants fraudulently and criminally contracted the debt and incurred the obligation is a mere conclusion. (Bank v. Swan, 3 Wyo. 356.) In the statutory ground the word "fraudulently" is the antecedent of the phrase "contracted the debt," and "criminally" relates to an obligation incurred. "Fraudulently" means more than illegal conduct; it implies moral turpitude and intentional fraud. (Worsham v. Murchison, 66 Ga. 715; Finlay v. Bryson, 84 Mo. 664; Drug Co. v. Drug Co., 5 Wyo. 510.) If plaintiff's theory is correct there was no contract relation, and the right of action is founded on a tort. A tort is a wrong independent of contract. (Tel. Co. v. Saunders, 32 Fla. 434; Clark v. Gates, 84 Minn. 381; Jones v. Hunt, 74 Tex. 657; Van Oss v. Synon, 85 Wis. 661; Bouvier's Dict. ) The alleged debt could not therefore have been fraudulently contracted.

Mrs. Card, if guilty of any wrongful act, had committed a mere trespass. The lands are not shown to have been enclosed, hence Sec. 4996 in the crimes act does not apply. A malicious trespass under Sec. 5013 does not include every wilful or wrongful act of trespass, but reaches only those acts done with a deliberate intent to injure. (State v. Johnson, 7 Wyo. 515; State v. McKee, 109 Ind. 497; State v. Cole, 90 Ind. 112.) Hatred or ill will towards plaintiff was not shown. Forcible entry and detainer as defined by Sec. 5026 in the crimes act is outside the plaintiff's case upon the allegations of the affidavit for attachment, hence that section cannot be held to apply; nor does the evidence support the claim that defendants, or either of them, had committed an act such as the statute refers to. The "force" mentioned in the statute means actual force. (Lodge v. Elkins (Ill.), 3 N.E. 272; Smith v. Reader, 21 Ore. 541; Brooks v. Warren, 5 Utah, 118.) The retention of wrongful possession peaceably acquired is a mere trespass. (Com. v. Dudley, 10 Mass. 403; People v. Smith, 24 Barb., 16.) Again no damages beyond nominal can be recovered in an action for forcible entry and detainer. The recovery is limited to restitution and costs. (19 Cyc., 1168-1170.) The evidence as to a matter of this kind on the part of the plaintiff having the burden of proof should be clear, and the affidavit is entitled to little weight. (Vandever v. Reading, 9 N.J. Eq. 446; In re Eldridge, 82 N.Y. 161; Whitney v. Land Co., 24 So. 259; Kipp v. Chamberlin, 20 N.J.L. 656; Fanning v. Doan, 139 Mo. 392.)

The evidence as to a fraudulent disposing of property by defendants was totally insufficient to sustain that ground of the attachment. (Hosea v. McClure, 42 Kan. 403; Campbell v. Jackson, 80 Wis. 48; Wyman v. Wilmarth, 1 S.D. 172; Iron Works v. Hill, 22 F. 195; Gregory Groc. Co. v. Young, 53 Kan. 339; Ray v. Gore, 73 Mich. 385; 41 N.W. 329; Goodbe Pitts Drug Co. v. Allen, 8 Utah, 117; Drug Co. v. Drug Co., 5 Wyo. 510.) The court erred in not hearing the application for release of exempt property.

McMicken & Blydenburgh, for defendant in error.

The so-called lease was more in the nature of a contract for personal services, and very similar in some of its provisions to a cropping contract, or a letting on shares. Whatever the language used, courts construe so-called leases, agreements and deeds so as to carry out the intention of the parties, respecting the peculiar character of a clause as a condition or covenant. Although an instrument may be in the form of a lease, it will be construed according to the intention of the parties as shown by its provisions. (Smith v. Tankersley, 56 Am. Dec., 193; Morland v. Strong, 73 N.W. 140; Messinger v. U. W. Co., 65 P. 808; William v. Rogers, 68 N.W. 240; Williard v. Wing, 67 Am. St. 657; Thompson v. Smith, 52 Am. Dec., 176; Richards v. Wardwell, 19 A. 863; State v. Jewell, 34 N.J.L. 259; Cassell v. Districh, 15 Wend., 379; Taylor v. Bradley, 4 Abb. Dec., 363; Weber v. Sisson, 53 Barb., 258; Denton v. Strickland, 48 N. C., 61; Medland v. Steele, 45 N. C., 154; Maverick v. Lewis, 3 McCord, 211; Warner v. Hossington, 42 Vt. 94; Mann v. Taylor, 51 Tenn. 267; Paige v. Akins, 44 P. 666; Chase v. McDonald, 24 Ill. 236; Dixon v. Nichols, 39 Ill. 372; 89 Am. Dec., 312; Lewis v. Wilkins, 62 N. C., 303; Randall v. Chubb, 41 Am. Rep., 165; Lewis v. Sheldon, 61 N.W. 269; Meyer v. Livesley, 78 P. 670.) This contract not being strictly a lease, but calling for the personal attention and services of the socalled lessee, it could not be assigned without consent, without forfeiting all rights to possession under it.

There was no homestead right in the leased premises. (R. S. 1899, Sec. 2770.) A married woman is not the head of a family so that a homestead may vest in her while her husband lives with her and is liable for her support. (Fuselier v. Bucknam, 28 La. Ann., 594; Kent v. Smith, 61 Ga. 449; Barry v. Assurance Co., 49 P. 148.)

To constitute malicious trespass under the criminal statute it is not necessary that a person shall be absolutely guilty of malice as defined by counsel for plaintiffs in error. The evidence shows the destruction of hay under circumstances indicative of a mischievous intent to injure. A showing of threats is sufficient to make out forcible entry and detainer. Personal violence is not necessary. If a party either by his speech or behavior gives those in possession just cause to fear bodily harm if they do not give way, the entry is deemed forcible. (State v. Pollack, 42 Am. Dec., 140; Evel v. Cromwell, 18 Am. Dec., 142, note; State v. Bennett, 18 Am. Dec., 664; State v. Lawson, 68 Am., 844; Lisner v. State, 20 Am. St. 389; Williams v. State, 48 S.E. 149.)

As to the claim that the court did not hear the application for an order...