Fults v. Munro

• Decision Date: 25 April 1911
• Citation: 202 N.Y. 34,95 N.E. 23
• Parties: FULTS v. MUNRO.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 34

95 N.E. 23

FULTS

v.MUNRO.

Court of Appeals of New York.

April 25, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Kittie Fults against John C. Munro. From a judgment of the Appellate Division (137 App. Div. 881,118 N. Y. Supp. 1107), affirming a judgment entered upon a nonsuit, plaintiff appeals. Reversed, and new trial granted.

The material allegations of the complaint are that on the 10th of March, 1908, the defendant leased to one William Fults, the husband of the plaintiff, a farm of 240 acres, situate in the town of Camillus, county of Onondaga. The lease was in writing, and provided for a term of one year from the 1st of April, 1908. The lessee agreed to market the crops and pay to the lessor as rent for the use of the premises one-half of all the proceeds of the farm. On the same day that the lease was made William Fults assigned it to his wife, the plaintiff herein, with the knowledge and consent of the defendant, and thereupon with like knowledge and consent she entered into possession of the premises. She further alleged that on the 16th of July, 1908, ‘said defendant made forcible entry into the lands and premises,’ fully describing them, and ‘made forcible entry to the whole of said premises and has forcibly put the plaintiff out of the possession thereof and has continued to forcibly and unlawfully hold plaintiff out of possession thereof, and by reason thereof said plaintiff has been damaged by the aforesaid acts of the defendant, his servants and agents, in the sum of $2,000 for treble which amount the plaintiff claims judgment against the defendant.’ The plaintiff also described the crops growing upon the premises at the time of the entry, and alleged that she ‘was receiving profits from seven milch cows amounting to $30’ per month. The defendant by his answer admitted the execution of the lease, denied all the other allegations of the complaint, and alleged that he was in possession under the judgment and warrant of a justice of the peace duly made and issued in a proceeding in which the defendant was the petitioner and William Fults, the lessee of the premises, was the defendant .

It appeared upon the trial that in July, 1908, the defendant began a proceeding before a justice of the peace to remove his tenant, William Fults, from the premises for the nonpayment of rent, but he did not make Mrs. Fults, the assignee of the lease, a party, although he knew of the assignment and had recognized her as in possession. After issue joined and a trial had in said proceeding, in which the plaintiff was sworn as a witness, judgment of dispossession was rendered in due form of law, and a warrant regular upon its face issued to a constable for execution. The officer went to the premises, and without using force or threats entered the dwelling house where Mrs. Fults resided and inquired for her husband. She said he was down in the lot, and asked the officer what he wanted. He answered: ‘I have come to put you out. If you don't take your $100 and put on your things and leave, I am going to put you out.’ She said: ‘Well, I guess you won't put me out.’ The defendant was not present when this took place. Mr. Wood sat down in a chair, and Mrs. Fults after saying, ‘These things are mine, don't you touch a thing in any way, shape, or manner in this house,’ went out, harnessed a horse, and drove to Syracuse. When she came back with a lawyer, the officer was removing the furniture, and placing it on the opposite side of the road in front of the house. After nearly everything was out, she went in to get some puppies, which she swore belonged to her, and the officer told her she could not have them, and, to use her own words, ‘He took me by the arm and put me right off,’ taking her to the road, but using no violence to speak of. After this the defendant came to the premises and she heard him identify certain articles, saying: ‘That is mine, don't take that out. This is theirs, take that out.’ Household furniture, horses, cows, wagons, farming implements, and tools all belonging to the plaintiff were thus removed from the premises and put on the opposite side of the road; the horses being tied to the fence. That night she slept on the roadside with her things. One Lockwood, an assistant of the officer, walked up and down the road with a shotgun during the entire night. Twice after dark and once in the middle of the night he fired the gun. He told her to keep off of Mr. Munro's land; that he was in possession; that Mr. Munro had left him to keep guard; and that she should keep off.

An appeal was taken by William Fults from the judgment of dispossession to the County Court, and on the 15th of October, 1908, the judgment was modified as to the amount of rent due, and, as thus modified, affirmed, without costs. The next day this action was commenced. On the 13th of November following a further appeal was taken to the Appellate Division, and on the 2d of March, 1909, the judgment of dispossession was reversed by that court on the ground that the rent and costs were tendered before the warrant was issued, and that no proper demand had been made. The present action was tried in May, 1909, and, when the plaintiff rested, the defendant moved for a nonsuit. The plaintiff asked to go to the jury upon the question whether she was forcibly ejected and detained from the premises, upon the question of the damages sustained by her, and upon all the evidence in the case. The application of the plaintiff was denied, the motion of the defendant granted, and the plaintiff excepted to each ruling. Upon appeal to the Appellate Division, the judgment entered upon the verdict was unanimously affirmed.Walter Welch, for appellant.

Thomas Woods, for respondent.

VANN, J. (after stating the facts as above).

Statutes relating to forcible entry and to forcible detainer, which are separate and distinct wrongs, have existed for centuries. The earliest, passed in 1381, provided that: ‘None from henceforth make any entry into lands and tenements but in cases where entry is given by the law, and in such case not with strong hand nor multitude of people but only in peaceable and easy manner; and if any man from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by imprisonment of his body, and thereof ransomed at the King's will.’ 5 Ric. II, c. 7; Pollock on Torts (6th Ed.) 368.

[1] Later the provisions of the statute were extended to forcible detainer (8 Henry VI, c. 9) and since then legislation upon the subject in England and in this country has usually been addressed to both forcible entry and forcible detainer and except in one or two states the offenses are still distinct. As time passed, many changes were made, and various remedies, both civil and criminal, provided, including the recovery of treble damages. The Revised Statutes contained the provision that: ‘If any person be disseized, ejected or put out of any lands or tenements, in a forcible manner, or being put out, be afterwards holden and kept out by force, or with strong hand, he shall be entitled to maintain an action of trespass, and shall recover therein treble the damages assessed by the jury or by a justice of the peace, in cases provided by law.’ 2 Rev. St. (1st Ed.) pt . 3, c. 5, tit. 6, § 4. The code of Civil Procedure provides that ‘if a person is disseized, ejected, or put out of real property, in a forcible manner; or after he has been put out, is held and kept out, by force, or by putting him in fear of personal violence, he is entitled to recover treble damages, in an action therefor against the wrongdoer.’ Code Civ. Proc. § 1669.

Under the head of summary proceedings to recover the possession of real property the Code further provides that: ‘An entry shall not be made into real property, but in a case where entry is given by law; and, in such a case, only in a peaceable manner, not with strong hand, nor with multitude of people. A person who makes a forcible entry forbidden by this section, or who, having peaceably entered upon real property, holds the possession thereof by force, and his assigns, under tenants, and legal representatives, may be removed therefrom, as prescribed in this title.’ Id. § 2233. It is provided by the Penal Code that ‘a person guilty of using, or of procuring, encouraging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law, is guilty of a misdemeanor.’ Pen. Code, § 465.

[2] As this is an action at law, the right to judgment depends on the facts as they stood when it was commenced, instead of, according to the rule in equity, as they stood at the date of the trial. Sherman v. Foster, 158 N. Y. 587, 593,53 N. E. 504, and cases cited.

[3] Hence the warrant to dispossess, being valid upon its face and having been issued pursuant to a judgment also valid upon its face, is to be regarded as valid when it was executed, although subsequently the judgment was reversed, not for want of jurisdiction, but for errors committed during the trial before the magistrate.

[4] Mrs. Fults, however, was not a party to the proceeding in which the judgment was rendered, so that she was not bound thereby, and the warrant was not good as against her. She was in possession as assignee of the lease, and there was evidence tending to show that the defendant had recognized her as lawfully in possession.She should have been joined as a party to the proceeding, and it was a trespass to dispossess her without giving her an opportunity to make her defense. As was said by Judge Van Heusen in Croft v. King, 8 Daly, 265, 268: ‘She might have paid the rent to protect her possession, or she might have taken a valid objection to some of the landlord's proceedings. At any rate, the statute gave her a right to a hearing and the landlord ought to answer in damages for the...