Sweeney v. Dahl.

• Decision Date: 10 November 1943
• Citation: 34 A.2d 673
• Parties: SWEENEY v. DAHL.
• Court: Maine Supreme Court

34 A.2d 673

SWEENEY

v.DAHL.

Supreme Judicial Court of Maine.

Nov. 10, 1943.

Exceptions from Superior Court, Cumberland County.

Action of forcible entry and detainer by Mary Sweeney against Henry Dahl. The trial justice gave judgment for the plaintiff, and defendant brings exceptions.

Exceptions sustained.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

Charles A. Bartlett, of Portland, for plaintiff.

Elton H. Thompson and Walter F. Murrell, both of Portland, for defendant.

CHAPMAN, Justice.

The case comes to this Court upon exceptions filed to rulings and final decision of the presiding Justice of the Superior Court. The action of forcible entry and detainer originated in the South Portland Municipal Court and went to the Superior Court upon appeal, where it was submitted to the Presiding Justice, sitting without a jury, on an agreed statement of facts with right of exceptions reserved.

The facts essential to the consideration of the case, as they appear in the agreed statement, made a part of the bill of exceptions, are as follows:

The defendant, as a tenant at will, occupied premises consisting of house and garage. The owner leased the premises to the plaintiff, who brought action of forcible entry and detainer for possession of the premises against the tenant, without notice of the lease to the tenant, to enable him to vacate the premises before suit was brought.

It does not appear from the agreed statement that the defendant had knowledge of the lease. The plaintiff claimed that the tenant, by reason of the termination of the tenancy alone, became subject to an action of forcible entry and detainer for the possession of the premises. The Justice ruled that the lease terminated the tenancy and that notice to the tenant of the lease was not necessary for the prosecution of the action and gave judgment to the plaintiff for possession of the premises and for damages to be assessed by the Clerk of Courts.

The essential allegation in the plaintiff's declaration is that the defendant “disseized the said Plaintiff of her lands and tenements” *** “and then and there and still does forcibly and unlawfully refuse to quit the same.” Authority for the complaint as set forth is found in the first clause of Sec. 1, Chap. 108 of the Revised Statutes of 1930, which reads as follows; “Sec. 1. Forcible Entry and Detainer, Against Whom Maintained. Process of forcible entry and detainer may be maintained against a disseizor who has not acquired any claim by possession and improvement.” So much of the clause as refers to claim by possession and improvement does not affect the consideration of the instant case. The second clause in the section provides that the action may be maintained “against a tenant holding under a written lease or contract, or person holding under such tenant, at the expiration or forfeiture of the term, without notice, if commenced within seven days from the expiration or forfeiture of the term;” And a third clause provides that the action may be maintained “against a tenant at will, whose tenancy has been terminated as provided in the following section.” The following section provides that: “Tenancies at will may be determined by either party, by thirty days' notice in writing for that purpose, given to the other party, and not otherwise save by mutual consent, ***.” It is to be noted that Sec. 1, as worded, makes the process available in two classes of cases: The one applying exclusively to situations existing between landlords and tenants and the other to a withholding of possession by a disseizor, irrespective of whether the disseizor's possession originated in a tenancy or otherwise.

The first clause under which the action was brought makes no mention of tenancy, and if it is within that clause it is not necessary that the person against whom the action is brought be a tenant. Baker v. Cooper, 57 Me. 388, 390. The essential element is that he be a disseizor. Lacking this element the clause does not apply. Kirstein Holding Co. v. Bangor Veritas, 131 Me. 421, 163 A. 655. The clause under which the action was brought is therefore independent of the two clauses following and takes no meaning from them. Woodman v. Ranger, 30 Me. 180; Eveleth v. Gill, 97 Me. 315, 54 A. 756. We, however, refer to the three clauses inasmuch as we believe there has been a confusion by reason of the grouping of the two classes of cases in one section, and it is necessary to distinguish in adjudicated cases when the Court is referring to the statutory notice necessary to terminate a tenancy by will of the parties, as provided in the last clause of the section, and when it is referring to a notice to the tenant after the termination of a tenancy by operation of law, a disregard of which notice will constitute him a disseizor and make the action of forcible entry and detainer available against him. A termination of a tenancy at will by alienation of the premises is by operation of law and not by will of the parties. Howard v. Merriam, 5 Cush., Mass., 563, 574; Seavey v. Cloudman, 90 Me. 536, 38 A. 540.

The substance of the accusation in the declaration is that the defendant was a disseizor. It is made in the words of the statute and the question to be decided is not merely whether the tenancy was terminated, but whether the tenant, by reason of the termination of his tenancy by the act of his landlord, was made a disseizor and subject to the action without notice of the same whereby he would have been able to vacate the premises before suit was brought.

The plaintiff must bring his case within the statute and his allegation. Eveleth v. Gill, supra. The Court said [97 Me. 315, 54 A. 757]:

“It follows, under the general law of pleading, that the plaintiff in such a process should allege in his declaration the facts declared by the statute to be an occasion where the process may be used.”

So far as the question is raised as to the effectiveness of the lease in terminating the tenancy of the defendant, the Justice was correct in his ruling. A deed or lease from the owner to a third party will terminate a tenancy at will, and the Court will not inquire as to the purpose of the conveyance. Rancourt v. Nichols, 139 Me. -; 31 A.2d 410, and cases therein cited. But this is not to say that the conveyance by the owner makes a disseizor of the tenant.

Were the facts set forth in the agreed statement, viz., that the owner alienated the premises without notice of the same to the tenant and without evidence of knowledge of the same on the part of the tenant, sufficient to maintain her allegation that the defendant disseized her? Another way of asking the question is: Did the tenant become a disseizor by the act of another person, over which act he had no control and of which he had no knowledge?

If a term used in the statute has a legal meaning it is presumed that the Legislature attached that meaning to the same. Endlich on the Interpretation of Statutes, Sec. 74; President, etc., of Merchants' Bank v. Cook, 4 Pick., Mass., 405, 411.

The term “disseizor” is strictly a legal term and carries a wrongful import. Lord Coke said: “A disseizor is where one enters intending to usurp the possession and to oust another of his freehold.” *** and, “Or if a man interveneth into lands of his own wrong and take the profits his words to hold it at the will of the owner cannot qualify his wrong, but he is a disseizor.” Co. Lit., 277. Mr. Kent said: “Every disseizin is a trespass, but every trespass is not a disseizin. A manifest intention to oust the real owner must clearly appear, in order to raise an act which may be only a trespass to the bad eminence of disseizin.” 4 Kent, 11th Ed., 487. 27 C.J.S., Disseizin, page 354, says: “The clearest and most comprehensive definition of a disseizin, perhaps, is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim arising from the acts and circumstances attending the appropriation to hold the land against him who was seized.”

In William v. Thomas, 12 East 141, disseizin was defined as “the putting out of a man out of seisin, and ever implieth a wrong.”

Our own Court said in Stetson v. Veazie, 11 Me. 408, 410: “for a disseizin is of itself a wrong.”

That the term “disseizor”, as contained in the statute, is to be given its common law meaning, is stated in Reed v. Elwell, 46 Me. 270, 279, where the Court said: “The disseizin contemplated by this statute, is not a disseizin which exists only at the election of a party, for the purpose of trying his title, but a disseizin at the common law.” And again in Dyer v. Chick, 52 Me. 350, 354, the Court adopted the common law meaning when it said: “Disseizin is a wrongful putting out of him that is seized of a freehold. Co. Lit., 277.” The clause of the statute now under consideration existed in the same terms, at the respective dates of these two cases, except that the present statute says: “Process of forcible entry and detainer may be maintained ***”, whereas the earlier statute R.S.1857, c. 94, § 1, said, “Process of forcible entry and detainer may be commenced ***”.

[9] That the Legislature intended to attach to the term “disseizor” the meaning above indicated is in harmony with the designation of the form of the action to be used. It is true that the Legislature has defined the use of the action of forcible entry and detainer and likewise has defined the procedure, but it is to be presumed that it had in mind the nature and general scope of the action and intended to give it such import as is not taken away by the terms of the statute. Endlich on the Interpretation of Statutes, Sec. 127. It no doubt selected this form of action, with the changes made in its procedure, as an appropriate remedy against one who wrongfully withholds possession from the one rightfully entitled to the same.

The action of...