Thomes v. Moody , 11 Me. 139 ( 1834 )

Mellen C. J.,

at a term lioldcn by adjournment in August following, delivered the opinion of the Court.

On the 14th of May, 1SS2, the defendant, one of the sons of the late Edmund Moody, was peaceably occupying and possessing the farm and dwellinghouse thereon standing, of which his father died seised, and on that day, he was, in a forcible and unlawful manner, turned out of possession of the same by the plaintiff, Samuel Moody, and some others; and with force and a strong hand, ho was kept out of possession until the 28th of February, 1833, at which time ho was restored to, and regained the possession. It is not pretended that the plaintiff has, or ever had any title to the said farm; he was, during the period of his unlawful possession, merely the lessee of William Thornes ; and he had no other title than under a deed, from the above named Samuel Moody, who at the time of making the deed, had neither a title to the limn, nor even possession. The hay and wheat, for which the present action of trover is brought, grew on the farm, during the tortious and unlawful possession of it by the plaintiff, and the defendant, when he regained possession, found the above property there, and appropriated the same to his own use. Can the plaintiff maintain this action ? The act of the plaintiff and his associates, in turning the defendant out of possession, was a trespass, for which he coidd at once have maintained an action of trespass, against all concerned or any of them. But the plaintiff’s counsel says, that the above act of dispossession and exclusion, amounted to a disseisin. If we so consider the conduct of the plaintiff, will it aid him in this action? It is a well settled principle of law, that if a disseisee, having a right of entry, enters, he may afterwards have trespass against the disseisor, with a continuando for the whole time of his possession. Co. Lit. 257, a; 2 Roll. 550; 5 Comyn Dig. Trespass B. 2; Cox v. Callen-der, 9 Mass. 533. In the present case, the defendant was restored to his possession of the premises, in about nine months after his expulsion; and the manner of his restoration did not give him less perfect rights, than he would have acquired by a lawful entry in the usual form; he therefore, on regaining his possession, had a legal right to recover damages against the plaintiff, for all injuries done to him by such violence, trespass, and exclusion. This being undisputed law, on what ground can this wrongdoer be permitted to recover the fruits of his wrong, against him whom he has wronged, who is also an owner in fee, of the land which produced the hay and wheat in question ? This view of the cause, seems to do away the distinction made by the plaintiff’s counsel, between this and the case of Higginson & al. v. York, 5 Mass. 341: as the Court said in the case of Cox & al. v. Callender, “ the entry of the disseisee, when he has a right of entry, changes the disseisin into a trespassand so, according to Higginson & al. v. York, the plaintiff, by his wrongful acts, acquired no property in the product of his labor, as against the owner of the land; although he might maintain an action of trespass or trover against a stranger, for the taking or appropriating such property without his consent. The verdict must be set aside and a nonsuit entered.