Hatstat v. Packard , 61 Mass. 245 ( 1851 )

Fletcher, J.

Packard, the defendant, took peaceable possession of the cellar of a building, of which he was himself the lawful owner. For thus taking peaceable possession of his own premises, Hatstat brings this action of trespass quare clausum fregit against him. But what right had Hatstat? The case finds, that Staniels gave Hatstat a verbal permission to remain in the cellar, Hatstat paying the rent therefor to him. Hatstat, therefore, had just such right, as the verbal permission of Staniels to him to stay there could give, and no more. He could have no better right than Staniels had. What right then had Staniels there ? Clearly no right at all. Packard had obtained a judgment and writ of possession against Staniels, and by virtue of this process, had put Staniels out, and put an end to all his right, and, of course, an end to all Hatstat’s right of possession. It was said by the counsel, at the argument, that the ruling of the judge at the trial, that the action could not be maintained, deprived the plaintiff of the opportunity of showing that the judgment, recovered by ihe defendant against Staniels and others, was fraudulent and void. But Hatstat was no party to that judgment, and the judgment was not used against him, but against Staniels, and it was no doubt a good judgment against Staniels, who did not question its validity. It was not for Hatstat to impeach a judgment against Staniels, which Staniels himself did not impeach, and to which Hatstat was no party. Hatstat, hav ■ ing no legal right to the premises in question, could not mabstain an action of trespass quare clausum. The count foT an assault cannot be maintained, as nothing was done bur to prevent Hatstat from committing an unlawful act of violence upon the property of the defendant, and to protect the defendant in the rightful possession of his own property.

Judgment on the verdict.