Goffin v. Mccall
| Decision Date | 18 March 1926 |
| Parties | GOFFIN v. McCALL et al. |
| Court | Florida Supreme Court |
Rehearing Denied April 28, 1926.
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action of unlawful entry and detainer by S. S. Goffin against Margaret McCall and her husband. Judgment for defendants, and plaintiff brings error.
Affirmed.
Syllabus by the Court
Statutes held to provide two remedies for persons who have been forcibly or unlawfully deprived of possession of land or from whose possession land is withheld (Rev. Gen. St. 1920, §§ 3456-3475). Sections 3456-3475, inclusive, Rev. Gen. St 1920, provide two remedies in favor of persons who have been forcibly or otherwise unlawfully deprived of the possession of land or from whose possession to which they may be entitled it is withheld against their consent.
One of statutory remedies rests on forcible or otherwise unlawful entry and detention, and other upon wrongful withholding of possession of land against consent of person entitled to possession (Rev. Gen. St. 1920, §§ 3456-3475). One of such remedies rests upon a forcible or otherwise unlawful entry and detention of land, and the other upon a wrongful withholding of possession of land against the consent of the person entitled to the possession of it.
Purpose of statutes relating to forcible entry and detention of land is to prevent subversion of actual possession by employment of force; procedure under forcible entry and detainer statute rests on actual possession by injured party (Rev. Gen. St 1920, §§ 3456-3475). The purpose of the statutes relating to forcible entry and unlawful detention of land is to prevent the subversion of actual possession of land by the employment of force. The procedure rests upon actual possession by the injured party. It is such possession which the law protects against the forcible or otherwise unlawful entry of the landlord or person claiming the right of entry.
Actual possession of premises sued for, held by plaintiff prior to unlawful entry by defendant, is essential to maintenance of action for forcible entry and detainer (Rev. Gen. St. 1920 §§ 3456-3475). Actual possession of the premises sued for held by the plaintiff prior to the unlawful entry made by the defendant, is essential to the maintenance of the action.
Actual possession of whole or part of premises is essential as basis for action for forcible entry and detainer, constructive or theoretical possession following title not being sufficient (Rev. Gen. St. 1920, §§ 3456-3475). Constructive or theoretical possession which follows the title is not sufficient upon which to base the remedy for forcible entry. Actual possession of the whole or a part of the premises is essential.
Actual possession as basis for action for forcible entry and detainer need not be evidenced by actual residence, continuous presence, or erection of fences, but there must be some visible act or evidence of continuous control over premises; as basis for action of forcible entry and detainer there must be such possession as would ripen, if continued for necessary period, into legal right against true owner if there was such outstanding title (Rev. Gen. St. 1920, §§ 3456-3475). Actual possession need not be evidence by actual residence, continuous presence or the erection of fences, but there must be some visible act or evidence of continuous control over the premises, such possession as would ripen, if continued for the necessary period, into legal title against the true owner if there was such outstanding title.
Forcible entry and detainer statute does not deprive owner of right of entry or right of one to enter who does so under bona fide claim of title, but in both cases it must be done in peaceable, easy, and open manner; entry by owner or one under bona fide claim of title in peaceable, easy, and open manner is given by law (Rev. Gen. St. 1920, §§ 3456-3475). The statute does not deprive the owner of lands of his right of entry nor the right of one to enter who does so under a bona fide claim of title, but in both cases it must be done in a peaceable, easy, and open manner; such an entry is given by law.
Where plaintiff in action of unlawful entry fails to show actual possession of premises prior to entry of which he complains, action must fail. Where the plaintiff, in an action of unlawful entry, fails to show actual possession of the premises prior to the entry of which he complains, the action must fail.
Sabel & Reinstine and George C. Bedell, all of Jacksonville, for plaintiff in error.
Frank F. L'Engle and Charles A. Powers, both of Jacksonville, for defendants in error.
This was an action of unlawful entry and detainer, brought by the plaintiff in error, S. S. Goffin, under section 3458, Revised General Statutes, against Margaret McCall and T. F. McCall, her husband.
The property involved was certain lots numbered 4, 5, 6, 7, and 8, block 24, Neptune, according to a certain plat recorded in the public records of Duval county. The lots were vacant--that is to say, unoccupied--in no one's actual possession, unfenced, and unimproved on the 23d day of March, 1925, when the plaintiff acquired a deed to them from Gertrude Thompson and her husband, T. A. Thompson.
On the 6th day of May, 1925, this action was begun. The defendants McCall had entered upon the property, built a three-strand wire fence around it, and put up notices warning against trespassing under penalty of law signed by Margaret McCall. The plaintiff discovered this situation on May 3, 1925.
The lots are located on the Atlantic beach near the town of Pablo in Duval county, and consist of part of a sand dune.
When Mr. Goffin discovered that the lots were fenced and posted by Mrs. McCall, he called upon Mr. McCall at Pablo, who claimed the property as his, and asserted his right to the possession of it as against the plaintiff. Mr. Goffin then brought his action, alleging in the petition that Margaret McCall and T. F. McCall, her husband, 'have unlawfully turned him out of and withhold possession of certain real estate,' describing it.
Two propositions are insisted upon by plaintiff in error either one of which, if true, he maintains is sufficient to support his action: First, it is contended that constructive possession of the lots by petitioner is sufficient upon which to base the action; second, that his acts in relation to the property when he obtained the conveyance from Mrs. Thompson and her husband show such actual possession of the lots as is sufficient to sustain the action if contructive possession is not sufficient. Those acts consisted, according to the statement in the brief of counsel for the plaintiff in error, in Mr. Goffin going upon the land with Mr. Sewell, the agent through whom Mr. Goffin purchased, it, the day following the purchase and 'selecting a place upon which to put a sign,' and 'a few days later he arranged with a man named Arnold to bulkhead the property,' and 'once or twice again' the petitioner was there.
The record does not disclose that either the sign was erected or the bulkhead constructed, or that either undertaking was actually commenced, or that any trace or sign of the subsequent visits to the property were left upon it.
The statutes relating to forcible entry and unlawful detainer embrace sections 3456 to 3475, inclusive, Revised General Statutes. They provide two remedies in favor of the person who has been forcibly or otherwise unlawfully deprived of the possession of land, or from whose possession, to which he is entitled, it is withheld against his consent.
One action rests upon a forcible or otherwise unlawful entry and detention of the premises, and the other upon a wrongful withholding of possession against the consent of the person entitled to the possession. In the latter case, the original entry may have been lawful or effected in a peaceable, quiet, and easy manner, without the consent of the person entitled to the possession. See sections 3458 and 3459, supra.
These statutes, which now provide a civil remedy in favor of persons who have been forcibly or otherwise unlawfully deprived of possession of land, or from whose possession, to which they are entitled, it is unlawfully withheld, have developed from the English statute of 5 Rich. II, which denounced as a crime the common-law right of subverting actual possession, though wrongful, by the employment of force. The common-law method of forcibly taking possession by one entitled to possession from another wrongfully in possession led to breaches of the peace.
The statute (5 Rich. II, Stat. 1, c. 8) enacted:
'That none from henceforth make any entry into any lands and tenements but in case where entry is given by law, and in such case with strong hand, nor with multitude of people, but only in peaceable and easy manner.'
The punishment of fine and imprisonment was expressly added as the statutable consequence of a violation of the prohibition.
The similarity in phraseology between that English statute and section 3456, Revised General Statutes,...
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...of the historical development of the entry and detainer actions is contained in Mr. Justice Ellis's opinion in Goffin v. McCall, 1926, 91 Fla. 514, 108 So. 556. Our present Florida statutes, F.S. Sec. 82.01 F.S.A. et seq. are almost identical with the early English statutes. F.S. Sec. 82.03......
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