Eveleth v. Gill

• Decision Date: 11 February 1903
• Citation: 97 Me. 315,54 A. 756
• Parties: EVELETH v. GILL.
• Court: Maine Supreme Court

54 A. 756

97 Me. 315

EVELETH

v. GILL.

Supreme Judicial Court of Maine.

Feb. 11, 1903.

(Official.)

Report from Supreme Judicial Court, Piscataquis County.

Action by Hattie Eveleth against Louis Gill. Case reported, and plaintiff nonsuit.

Forcible entry and detainer begun in the Dover municipal court to recover possession of the St. Germain House, in Greenville. The defendant pleaded the general issue, and, by way of brief statement, that he held a lease of the land, upon which the rent had been fully paid, and was owner of the building; and, second, that Rebecca W. Crafts was owner of two-thirds of the real estate, and that he was occupying under her. Judgment having been given for the defendant, the plaintiff appealed to this court, sitting at nisi prius.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

C. W. Hayes and W. H. Powell, for plaintiff.

Henry Hudson, for defendant.

EMERY, J. The case is this: John H. Eveleth in his lifetime executed to the defendant, Gill, a written agreement to sell and convey to him a building in Greenville for $1,628, to be paid in monthly installments, with interest, and also to lease to him the land upon which the building stood, for 15 years, at a rental of $10 per year. Also, by the terms of the agreement, Mr. Gill was to have possession of the premises until he failed to perform the conditions of the agreement. Mr. Gill immediately entered into possession of the premises under this agreement, which was dated May 1, 1895, and had made all the payments called for by the agreement up to the beginning of this litigation.

John H. Eveleth died November 7, 1899, and the plaintiff, Hattie Eveleth, became the owner of the one-third of his interest or title in said building and land. February 21, 1900, the plaintiff began this process of forcible entry and detainer against Gill in the Dover municipal court to remove him from the premises. Judgment was rendered for the defendant in that court, and the plaintiff appealed; and the whole case, with the pleadings and evidence, is reported to the law court for determination.

The plaintiff's declaration is as follows: "in a plea of forcible entry and detainer, for that the said Louis Gill, at said Greenville, on the 15th day of February A. D. 1900, having before that time had lawful and peaceable entry into the lands and tenements of the said Hattie Eveleth, situated in said Greenville, to wit, a certain building situated on the south side of West street in said Greenville, and known as the 'St. Germain House,' and the land on which said building stands, and whose estate in the premises was determined on the 15th day of February A. D. 1900, then and still does forcibly and unlawfully refuse to quit the same."

The plaintiff thus acknowledges that the defendant was originally in lawful possession under a lawful estate, but alleges that his estate was terminated on February 15, 1900. To prove such estate and termination thereof, the only evidence adduced by her was that on the day named the defendant was using the building or tenement, or some part thereof, for one of the purposes forbidden by section 1, c. 17, Rev. St. (the Nuisance Act). The plaintiff contends that upon such evidence she is authorized to make immediate entry without process, or to avail herself of the process of forcible entry and detainer provided by Rev. St. c. 94, and cites section 3, c. 17, Rev. St., as follows:

"If any tenant or occupant, under any lawful title, of any building or tenement not owned by him, uses it or any part thereof for any purpose named in section one, he forfeits his right thereto, and the owner thereof may make immediate entry without process of law, or may avail himself of the remedy provided in chapter ninety-four."

Granting her contention as to her rights under section 3, c. 17, we think it clear that, in resorting to the legal process authorized only by the statute, she must state, as well as prove, a case within the terms of the statute, and this she has not done.

The summary process of forcible entry and detainer at common law was a criminal or quasi criminal process, and was only allowed where the entry and detainer were with force—the strong hand. The legislature of this state has devised a process of the same name, but now purely civil in...