Fiske v. Chamberlin , 103 Mass. 495 ( 1870 )

Ames, J.

One of the questions between these parties was disposed of in the preceding case of Earle v. Fiske, in which it was decided that Nicholas H. Earle, under whom this defendant justifies, had a better title to the estate described in the officer’s precept than any person claiming under the deed from Nancy A. Fiske under date of April 22, 1864, referred to in the report. As it is not charged that the defendant, in the service of the precept, made use of any unusual or improper force, it would seem to follow that he is protected by his precept, and cannot be considered as a trespasser for obedience to its requirements. It is true that it was not an execution against the female plaintiff, but she had no title in the estate which was of any avail against the claim of the true owner, Earle. It does not appear that her removal from it, without force, was a wrong of which she had any right to complain (against the officer acting for the true owner) in the present action, which is in fact trespass guare clausum. The defendant’s duty was to put the true owner in possession in obedience to the command of the execution, which appears to be all that he has done. Wilmarth v. Burt, 7 Met. 257, 259. Howe v. Butterfield, 4 Cush. 302, 305. To put Earle into possession required of necessity the removal, not only of Fislce, but also of his family and effects. The title of the female plaintiff was derived from the same source, and depends on the same considerations, as that of her husband, which has already been adjudged insufficient as against the party in whose behalf this defendant was acting and under whom he justifies.

Judgment on the verdict.