Judy v. Citizen
| Decision Date | 09 April 1885 |
| Docket Number | 11,691 |
| Citation | 101 Ind. 18 |
| Parties | Judy v. Citizen |
| Court | Indiana Supreme Court |
Rehairing Date: June 13, 1885
Reported at: 101 Ind. 18 at 22.
From the Warren Circuit Court.
The judgment is affirmed, with costs.
T. F Davidson and W. B. Durborrow, for appellant.
J McCabe and E. F. McCabe, for appellee.
The question to be determined in this case involves the right of the owner of real property to take possession of it by force, against another who is in the peaceable possession of it without any other right except such as results from his actual peaceable possession, under a claim of right.
The complaint averred that on the 6th day of March, 1884, the plaintiff, Citizen, was in the lawful and peaceable possession of a certain ten-acre tract of land in Warren county, which had upon it a dwelling-house which he was occupying with his family as tenant from year to year, when it is alleged that defendant Judy, accompanied by four others, with force and violence entered, and with threats and menaces evicted the plaintiff from the premises, and put his goods in the highway, and that he continues to detain the possession from plaintiff by force.
It is argued that the court erred in overruling a demurrer to this complaint, for the reason that it is not averred in the complaint, that the plaintiff had any right to the possession of the premises from which he was evicted in the manner described, and the defendant relies upon Archey v. Knight, 61 Ind. 311. It was there said that "It is only one 'having right to possession' of the lands in dispute who can maintain an action of forcible entry and detainer." It was also said in that case, that the action of forcible entry and detainer was not intended to try the title to lands, and that the plaintiff must prove he was in possession of the land before the forcible entry.
Adhering to what was said in the case relied on, it still remains to be determined, whether one having peaceable possession under a claim of right, has not also such "right to possession," within the meaning of section 5237, R. S. 1881, as will entitle him by the remedy there provided to be restored to the possession from which he has been deprived by force. By this section it is provided: "Any person who shall make unlawful or forcible entry into lands, and shall either peaceably or forcibly detain the same against any person having right to possession thereof, * * * may be ousted from such premises, and the possession thereof restored to the person entitled to the same, and damages for retention recovered on complaint by him made, in the same manner as provided in the case of tenants holding over."
By the common law of England prior to the enactment of the statute 5 Ric. II. 8, it was allowable to every person who was the owner of lands or tenements of which he was disseized, to regain possession by force, and without the aid of the law. "But," in the language of Sir William Blackstone, 4 Black. Com., p. 148. This same commentator says, book 3, p. 179: It will also be found on examination, that by the several statutes passed in England, it became the duty of the king's justices, on complaint of a forcible entry, to make inquiry concerning the same, and upon conviction to commit the offender "without inquiring into the merits of the title." This is substantially the purpose of the statute above set out, and where one is in the actual peaceable possession of lands, under a claim of right, such possession of itself gives him, as against any person entering or seeking to enter by force, upon a possession so had, the right to possession.
The statute providing a remedy for a forcible entry was designed to protect persons in the actual peaceable possession of premises, under a claim of right, from forcible eviction or unlawful invasion, whether such claim might in the end turn out to be well founded or not. Cooley Torts, 323.
Where a person is thus in actual peaceable possession, and such possession is forcibly and violently invaded, even though it be by the owner, who in the end has the right of possession, such person is entitled to the remedy provided by this statute. In such case, proof of actual, exclusive, peaceable possession under a claim of right will support the "right to possession," and entitle the person evicted to restitution. "Presumptively, a peaceable possession is always rightful." Cooley Torts, 326. If this is not the proper construction of the statute, then every tenant holding over, and every other person in actual possession, whose claim turns out not to be well founded, would be at the mercy of the landlord or other person having the better legal right, and might be expelled with whatever violence the owner might reasonably think fit to employ, thus substituting force and violence in the place of the orderly methods of the law. To prevent this was, as we have seen, the very purpose for which the forcible entry and detainer act was first enacted. Under this statute, the possession can not be changed against the person who actually has it, under claim of right, without the intervention of legal procedure.
It is suggested in argument that this view of the subject would expose the owner of a house...
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Hinshaw v. State
...thereto. Otherwise there is no question presented as to the correctness of the ruling. There was no available error in the ruling. Judy v. Citizen, 101 Ind. 18. The witness William McCormick, who testified as to the conversation of appellant concerning the tragedy, incidentally stated that ......
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Hinshaw v. The State
...thereto. Otherwise there is no question presented as to the correctness of the ruling. There was no available error in the ruling. Judy v. Citizen, 101 Ind. 18. witness, William McCormack, who testified as to the conversation of appellant concerning the tragedy incidentally stated that he t......
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Shenkenberger v. The State
... ... witness's answer to the question, and then, if the ... objection is sustained, to reserve an exception to the ruling ... on the question. Judy v. Citizen, 101 Ind ... 18; Higham v. Vanosdol, 101 Ind. 160; ... Gipe v. Cummins, 116 Ind. 511, 19 N.E. 466; ... Spence v. Board, ... ...
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Gunder v. Tibbits, Administrator
...witness's answer to the question, and then, if the objection is sustained, to reserve an exception to the ruling on the question. Judy v. Citizen, 101 Ind. 18; Higham v. Vanosdol, 101 Ind. Gipe v. Cummins, 116 Ind. 511, 19 N.E. 466; Spence v. Board, etc., 117 Ind. 573, 18 N.E. 513; Kern v. ......