Croff v. Ballinger ( 1856 )

Skinner, J.

Forcible entry and detainer, by Ballinger against Groff.

The evidence substantially shows that Ballinger was in the actual possession of the premises described in the complaint, being a residence and grounds occupied by him; that Groff went there with his family and household goods, and commenced unloading his goods and moving them into the house; that Ballinger then forbade him doing so, but made no demonstrations of forcible resistance ; and that Groff took possession of a portion of the house, and held it after demand in writing therefor made by Ballinger.

The jury found Groff guilty of forcible entry and detainer, and the court refused a new trial.

The court permitted Ballinger, against the objection of Groff, to prove his own declarations, made at the time Groff was moving into the house, tending to show that the entry was made against his will.

The court, on the part of Ballinger, instructed the jury as follows:

“ No. 1. If the jury believe, from the evidence, that the plaintiff was in the actual possession of the premises sued for, on the 9th of April, 1855, and that on that day the defendant, against the will and without the consent of the plaintiff, intruded into said premises; and if they believe, from the evidence, that before the commencement of this suit the plaintiff made a written demand upon the defendant to surrender said possession, and tLat said defendant still holds said possession against said plaintiff, that then they will find a verdict for the plaintiff.

“ No. 2. If the jury believe, from the evidence, that the plaintiff was in the peaceable possession of the premises sued for, and that while he was so in possession, the defendant, without his consent and against his will, at the time expressed, entered upon said possession and withholds said possession from the plaintiff; and if they further believe, from the evidence, that, before the commencement of this suit, the plaintiff made a written demand upon the defendant for the possession of said premises, that they will find a verdict for the plaintiff.

“ifo. 3. That in order to constitute a forcible entry, it is not necessary that actual violence éhould be used, but that any entry upon the possessions of another, without his consent and against his will, is a forcible entry within the meaning of the law: Provided, The entry be made in such manner as to induce the belief that a resistance thereto would result in violence.”

Croff excepted, and assigns for error the several rulings of the court indicated.

The jury were justified, from the evidence, in finding Croff guilty, and the instructions are substantially correct.

To constitute forcible entry and detainer, under our statute, it is not essential that the entry be made with strong hcmd, or be accompanied with acts of actual force or violence, either against person or property. If one enters into the possessions of another against the will of him whose possession is invaded, however quietly he may do so, the entry is forcible in legal contemplation.

The word force, in our statute, means no more than the term vi et a/rmis does at common law, that is, with either actual or implied force. If A. wrongfully enters into the possessions of B., although with the least possible manual force, in consideration of law the entry is forcible, and the remedy for the trespass, or wrong, is as complete as if A. had made the entry with actual force and violence, overpowering by strong lumd all resistance. 1 Chitty’s PI. 125, 126 and 166. A party may prove his own declarations made at the time of an act done, illustrative of his intention, or of the motive which actuated him. The declarations of dissent or opposition of Ballinger to the entry made on the occasion of the entry, were proper, in connection with the whole evidence, for the consideration of the jury to enable them to determine whether the entry was made against the will of Ballinger; and, as a part of the res gestee, he might prove them. 1 Gil. R. 127; 15 Ill. R. 514; ibid. 442; 4 Scam. R. 558; 2 ibid. 347.

Judgment affirmed.