Marden v. Jordan , 65 Me. 1 ( 1874 )

Walton, J.

This is an action of trespass quare clausum fregit; and the jury having returned a verdict for the plaintiff, the defendant moves to have it set aside, because, as he claims, it is against law, and against evidence; and on the ground of newly discovered evidence.

1. It is claimed that the verdict • is against law, because the plaintiff is mortgageor, and the defendant mortgagee, of the close into which the defendant is charged with having broken and entered. It is insisted that an action of trespass quare clausum fregit will not lie by a mortgageor against his mortgagee. This objection does not appear to have been taken at the trial; and we think it could not have been maintained if it had. The evidence very clearly indicates that the mortgageor was in possession of the mortgaged premises by virtue of a contract with the mortgagee, and that the relation of landlord and tenant existed between them; and we take it to be well settled that a tenant, — even a tenant at will, — may maintain trespass quare clausum fregit against his landlord, for a forcible entry upon him before the tenancy is terminated. Brock v. Berry, 31 Maine, 293. Dickinson v. Goodspeed, 8 Cush., 119.

II. We think the verdict cannot be said to be against the weight of evidence. On the contrary we think it fairly preponderates in favor of the verdict. A new trial cannot therefore be granted on that ground.

III. Nor do we think a new trial ought to be granted on account of the alleged newly discovered evidence. The evidence alleged to have been newly discovered does not seem to us to be of a very reliable character; and most of it appears to have been known to the defendant before he went to trial, and is not, therefore, evidence newly discovered, if his witnesses are to be believed ; and no reason is perceived why by the use of due diligence that portion of it which was not known to him might not have been as easily discovered before the trial as immediately after.

M,otions overruled.

Judgment on the verdict.

Appleton, C. J., Dickerson, Barrows, Danforth and Virgin, JJ., concurred.