Craig v. Donnelly , 1887 Mo. App. LEXIS 138 ( 1887 )

Ellison, J.

To maintain this action there must have been a possession in the plaintiff, and this fact of possession and the intrusion upon it is the sole issue.

I. There is no legal rule more fully and definitely settled than that, in an action of forcible entry and detainer, neither the title nor the right to the possession is in issue. The matter of right is foreign to the case. The question is merely, has there been a forcible entry on the plaintiff’s possession? If there has been the intruder must restore' the possession ; place the party in statu quo, and then if he has a case he can assert it by legal proceedings. The law does not permit him to redress his grievance with his own hand, and if he does so redress it, the law will undo his work and place the parties as they were before the entry. Such, undoubtedly, is the rule in this state. Krevet v. Meyer, 24 Mo. 107; Vaneman v. Walker, 47 Mo. 169; Buler v. Cardwell, 33 Mo. 85: Dilworth v. Fee, 52 Mo. 131. So jealous is the law in this respect that it is held that one forcible entry and detainer cannot be set off against another. King v. Gas Light Co., 34 Mo. 34. A trespasser may maintain the action against one who forcibly ejects him. The whole theory and scope of the law is to prevent men from attempted vindication of their rights with their own hand. The act stands as conservator of the peace. It was designed to prevent the very scene which occurred in this case.

Defendants claimed and asserted a right to the possession of the “ Grillis Opera House.” That right was resisted by the plaintiff, who was actually in the bodily possession, and defendants thereupon proceeded to enforce that right with their own strong hand by turning him out “by the heels.” Defendants claim that plaintiff was not in possession : that they were in exclusive possession and plaintiff was simply their agent. But this is a legal deduction, resulting from a construction of the law about which there seemed to be a violent difference of opinion. Plaintiff was in the actual occupancy of the building and claimed to be in the possession and defended such possession to the extent oE putting defendants in fear of their lives. Defendants asserted their rights, as they conceived them to be, by bodily turning plaintiff out and changing the locks, that he might not get back. And thus was the contest and conflict which the forcible entry and detainer act was designed to avoid. If defendants had the right to the possession of the house, they should have resorted to the law for its enforcement.

II. Defendants, as I have said, claim that plaintiff, though bodily occupying, running, controlling, and managing the opera house, was doing so as their agent or servant, and, therefore, his possession was their possession, and they were, consequently, not guilty of a breach of the law in entering and turning Mm out. Is this position tenable under the adjudications in this state ? However wrongfully a possession may be obtained,' it cannot be intruded upon, and a trespasser may maintain the action. Authorities, supra. If a trespasser, in this action, is protected by the statute, why is not an agent or servant also, who may assert Ms possession and resist intrusion ? If a servant or agent, who is in the exclusive bodily possession of a house, as distinguished from Ms legal right, resists the attempted entry of Ms master or principal, must such master or principal organize a storming party and capture the premises by bloodshed, if need be? This question has been decided in Ensly v. Bennett (37 Iowa, 15), where the court says that, “It is immaterial, also, in what capacity or relation the plaintiff is in possession, whether as owner, tenant, agent, or as a mere trespasser. It is the fact of possession alone that is material. A person may render himself liable to an action of forcible entry and detainer by entering upon his own premises, even when he has the right to immediate possession.”

The authorities to which defendants have especially called our attention are not forcible entry and detainer cases. It is quite clear that one may successfully resist a suit in trespass, an action on a contract, or the like, and yet fail in a defence to forcible entry and detainer of the same property. The forcible entry and detainer act is a law standing apart and bearing little analogy to other law. Much has been said to show that the contract, in this case, did not create a tenancy, but one does not need to be a tenant to bring this action. Most of the authorities, cited by defendants, are where the right of the defendant was involved, and are cases in which such right may be asserted. The case of Chenowyth v. Mining Co. (74 Mo. 173) was much relied upon at the argument, to support defendants’ action in forcibly ejecting plaintiff from the premises. But that action was unlawful detainer merely, and was instituted under section 2420, Revised Statutes, where the question of right properly intervenes. Under that section the action can be maintained by the person having the legal right to the possession; whereas, under section 2419, the forcible entry and detainer section, the legal right is foreign to the issue. Besides, that case is based on a mining statute, specially applicable to an occupancy or possession such as was had by the plaintiff in that case.

As before stated, much of the argument was devoted to the question, whether the contract created, the relation of landlord and tenant or master and servant. But whether plaintiff was a tenant or a servant cannot affect this case as it has been developed by the evidence. The contract, whatever else it may not have done, did put plaintiff in “charge and control and'possession of the opera house.” And it gave him ‘ ‘ full and complete control of the house (to) run and manage the same for himself and in his own name.” His possession of the house seems not to be limited, though, for the security of the reputation of the house and payments to defendants of their stipulated per cent., his control of the treasury, performances, and exhibitions, may have been. So if it should be conceded that plaintiff was mistaken as to his legal rights under the contract, yet it is certain he was occupying and claimed to be in possession of the house, as against defendants, and that he resisted them until overcome vi et armis. Objections made against the sufficiency of the affidavit are not deemed to be well taken.

The judgment is reversed and the cause remanded.

All concur.