Smith v. Reeder

• Decision Date: 18 January 1892
• Parties: SMITH v. REEDER.
• Court: Oregon Supreme Court

28 P. 890

21 Or. 541

SMITH v. REEDER.

Supreme Court of Oregon

January 18, 1892

Appeal from circuit court, Marion county; R.P. BOISE, Judge.

Action by James K. Smith against L.M. Reeder for a forcible entry and detainer. Judgment for plaintiff. Defendant appeals. Affirmed.

Bonham, Holmes & Hunt, for appellant.

D'Arcy & Bingham and Tilmon Ford, for respondent.

BEAN, J.

This is an action of forcible entry and detainer. For the purposes of this appeal a sufficient statement of facts is that prior to the 10th day of October, 1890, defendant was in the possession of the disputed premises, as a tenant of plaintiff under a contract of leasing, which by its terms expired on the 10th day of October, 1890, as found by the jury. After the expiration of the lease, defendant refused upon demand to quit and surrender possession of the premises to plaintiff who thereupon sought the advice of counsel, and, under their instruction, during the temporary absence of defendant for the day, leaving no one in possession of the premises, and without having given a written notice to quit, about 9 o'clock in the morning of December 19, 1890, entered and took possession of the dwelling-house thereon, by forcing open the outer door, which had been fastened by defendant and in a careful manner removed defendant's goods, and stored them in an outbuilding, and moved his own household goods and family into the house, and at the same time sent word to defendant that he could have a reasonable time in which to come upon the premises for the purpose of removing his goods and stock therefrom. When defendant returned in the evening he was refused admission to said dwelling-house by plaintiff. Late in the evening of the succeeding day he caused plaintiff, his wife and brother-in-law, who were occupying the house, to be arrested for trespass, and while they were under arrest, accompanied by his father-in-law, two brothers, and one Zumwalt, he proceeded to said dwelling-house forced open the door thereof, and with force and violence ejected therefrom plaintiff's mother-in-law and little son, who had been left in charge by plaintiff, and took possession, and has ever since continued to hold the same. Whereupon plaintiff commenced this action, which resulting in his favor, defendant appeals.

The errors assigned and relied on at the argument are in the giving and refusal of certain instructions by the trial court, which are unnecessary to be stated, further than to say that they only present the question whether the entry of plaintiff, in the manner stated, was a lawful entry. It is contended for defendant that plaintiff, by forcing the outer door of the dwelling-house on the premises in dispute, and taking possession thereof, during the temporary absence of defendant, was guilty of a forcible entry, and did not acquire such a peaceable and lawful possession as will enable him to maintain an action for forcible entry and detainer under our statute. On the other hand, plaintiff's contention is that, the lease under which defendant went into possession having expired by its own terms, plaintiff was lawfully entitled to the immediate possession of the premises, and, if his entry was in a peaceable and quiet manner, it was a lawful one, and restored him to complete and lawful possession; and this seems to have been the view of the trial court.

Before proceeding to the consideration of the principal question in this case, it is proper and important to ascertain the relation of the parties to each other, and to the disputed premises, at the time of plaintiff's entry. From the verdict of the jury we must assume that the lease under which defendant went into possession had, by its own terms, expired on October 10, 1890. In such case the tenancy terminated immediately, without any notice to quit, because both parties were fully apprised, by the terms of their agreement, of the end of the lease. The defendant, by remaining in possession or "holding over," as it is called, instead of quitting and surrendering up possession, as he ought to have done, was a wrong-doer, and could be so treated by plaintiff the landlord. Sedg. & W. Tr. Land Title, § 378; Overdeer v. Lewis, 1 Watts & S. 90; Secor v. Pestana, 37 Ill. 525; Schuyler v. Smith, 51 N.Y. 309; Den v. Adams, 12 N.J.Law, 99. In such case the landlord, being the owner and entitled to the immediate possession of the property, can lawfully take possession, if he can do so in a peaceable manner. The taking possession peaceably is lawful, for it is but the completion of a pre-existing right. If he cannot acquire possession without force, then he must resort to the aid of the law, in some appropriate mode, or render himself liable to an action of forcible entry and detainer, and perhaps to an action of tort, if he used undue force. But, by the decided weight of authority, he may enter and expel the tenant by force, without being liable to an action of tort for damages, either for his entry upon the premises, or for an assault in expelling the tenant, provided he uses no more force than is necessary and does no wanton damage. His title and lawful right to the possession are a complete justification for his entry upon the land, and the tenant, as against him, has no right of occupation whatever. Having obtained possession by an act of which the tenant has no right to complain, he cannot be liable to an action for the incidental act of expulsion, to which he has been obliged to resort in order to make his entry effectual, because of the tenant's unlawful resistance. "To hold otherwise," says GRAY, C.J., "would enable a person occupying land utterly without right to keep out the lawful owner until the end of a suit by the latter to recover the possession to which he is legally entitled." Low v. Elwell, 121 Mass. 313; 2 Woodf. Landl. & Ten. 741, note; 2 Taylor, Landl. & Ten. § 532; Tuhr v. Dean, 26 Mo. 116; Dearborn Lodge v. Klein, 115 Ill. 177, 3 N.E. 272; Turner v. Meymott, 8 E.C.L. 450; 4 Amer. Law Rev. 429,--where the question is fully discussed. If he enters in a peaceable and orderly manner, even while another is in possession, he commits no wrong at all, as he has a lawful right to do so, and his entry, in contemplation of law, restores him to complete possession. Cooley, Torts, 323. But if he forcibly enters and expels the tenant, while he may not be liable to him in an action of tort, he is guilty of a violation of the forcible entry and detainer act, which is designed to protect the public peace; and, in such case, the law will award restitution to the tenant, not because it recognizes any rights in him, but for the reason that, out of regard for the peace and good order of society, it does not permit a person, in the quiet and peaceable possession of land, to be disturbed by force, even by one lawfully entitled to the possession. It will thus be seen that the pivotal point in this case is whether the entry of plaintiff, by forcing open the outer door and taking possession of the dwelling-house, during the temporary absence of defendant, was a forcible entry, within the meaning of the forcible entry and detainer act.

By section 3509, Hill's Code, it is provided that "no person shall enter upon any land, tenement, or other real property but in cases where entry is given by law; and in such cases the entry shall not be made with force, but only in a peaceable manner." Now, we have already stated that "an entry was given by law" to plaintiff, and therefore, under this section, the only restriction on his right to exercise it was that it should "not be made with force." If his entry was a peaceable one, it was lawful; but if made with force, it was unlawful, and he did not acquire such a possession as will enable him to maintain this action. As to when an entry is made with force, within the meaning of this statute, there is much apparent conflict in the authorities. But the divergence of views sometimes expressed is doubtless in part owing to the different phraseology of the statutes under which the cases have arisen, and the conflict is more apparent than real. It is agreed that the object of the statute is not to punish for a mere trespass upon land. In substance, our statute is the same as the original forcible entry and detainer act of 5 Rich. II., after which the statutes in most of the states are modeled; the words "not with force," and "not with strong hand or with multitude of people," in substance meaning the same thing. The proceedings under the statute were originally in their nature criminal, for the redress of a wrong to the public done by a breach of the peace. It was not designed or intended to confer rights. While, through gradual additions, the remedy has become in effect private as well as public, its main design still is to prevent breaches of the public peace. In actions under the statute, there must still be present, to secure conviction proof of some wrong done to the public. The process was originally what the expression (taking the word "forcibly" in its technical meaning) meant,--a process for the recovery of lands entered or detained by such force as to constitute a breach of the peace. It "was authorized only where the entry or holding was by force or violence, or threats of violence, sufficient to deter the owner from entering." KENT, J., in Dunning v. Finson, 46 Me. 550. The word "force," when used in the statute, means actual force, as contradistinguished from implied force; and so it has always been held under the statute of 5 Rich. II., and similar statutes, not only in England, but by the weight of authority in this country. See note to Evill v. Conwell, 18 Amer.Dec. 138. As a general rule, it may be stated that, to render an entry forcible under the statute of forcible entry and...