Mosseller v. Deaver

• Decision Date: 19 May 1890
• Citation: 11 S.E. 529
• Parties: MOSSELLER v. DEAVER et al.
• Court: North Carolina Supreme Court

11 S.E. 529

MOSSELLER v. DEAVER et al.

Supreme Court of North Carolina

May 19, 1890

Appeal from superior court, Buncombe county; WALTER CLARK, Judge.

Action by J. S. Mosseller against W. I. S. Deaver and others for damages for forcible entry and detainer. Judgment for defendants. Plaintiff appeals.

T. F Davidson, for appellant.

M. E Carter, for defendants.

SHEPHERD J.

The plaintiff had been in possession of the strip of land in controversy from 1884 to March, 1888. Whether he entered under the defendant Wilson, the owner, and the terms under which he entered, are disputed questions. It is admitted however, that in March, 1887, Wilson, after giving the plaintiff notice to quit, agreed that he should remain upon the land until the succeeding October. The plaintiff continued in possession until March, 1888, when, without any further notice, he was forcibly ejected by the defendant Deaver and a negro, who were acting under the direction and authority of the said Wilson. The entry was made while the plaintiff was in the actual possession of his house, and in his presence, and was done under such circumstances as to constitute a forcible entry under the statute, if not, indeed, an indictable forcible trespass. His honor charged the jury that, if the plaintiff was not the tenant of Wilson, the latter, and those acting under him, "had the right to go there, and put him out by force, if no more force was used than was necessary for that purpose." Under the circumstances of this case, (the plaintiff not being a recent trespasser or intruder,) we cannot approve of the instruction given, as it is not only opposed to the public policy which requires the owner to use peaceful means or resort to the courts in order to regain his possession, but is directly contrary to a statute, which condemns the violent act as a criminal offense. In Dustin v. Cowdry, 23 Va. 631, REDFIELD, J., said: "We entertain no doubt that such a principle of law *** did exist in England from the time of the Norman conqueror until the statute of 5 Richard II. c. 8, of 'Forcible Entry and Detainer,' a period of nearly three hundred years; *** and it is certain, we think, that such a mode of reducing rights of action to possession is more suited to the turbulence and violence of those early times, when no man, whose head was of much importance to the state, felt secure of retaining it upon his shoulders for an hour, than to quiet and order and general harmony of the nineteenth century. *** But as men advanced towards equality, and claimed to have their rights respected and guarantied to them, and more carefully defined, this state of the law became intolerable, and was among the first to be abrogated by parliament." This was done by the statute of 5 Richard II., which is substantially enacted in North Carolina, (see Code § 1028,) ^[1] and in many other states of this Union. "A contrary rule," says LAWRENCE, J., in Reeder v. Purdy, 41 Ill. 279, "befits only that condition of society in which the principle is recognized that--

He may take who has the power, And he may keep who can.

--If the right to use force be once admitted, it must necessarily follow as a logical sequence that so much may be used as shall be necessary to overcome resistance, even to the taking of human life."

Nearly all of the authorities agree that such forcible entries on the part of the owner are unlawful, but there is a great diversity as to whether an action of trespass quare clausum fregit may be maintained,...