Lowman v. Sprague , 73 Hun 408 ( 1893 )

MARTIN, J.

I think the judgment of the county court should be affirmed. This proceeding was instituted by the respondent under title 2, c. 17, of the Code of Civil Procedure, to acquire the possession of the farm or premises in question. The respondent’s claim, as finally made, was based on the allegation that the appellants, by force, held the possession of the premises sought to be recovered. The answer was in effect a general denial of the allegations in the petition, but contained no allegation that the appellants or their ancestor, or those whose interest they claimed, had been in quiet possession of the property for three years before the alleged forcible detainer, as provided by section 2245. On the trial the justice dismissed the proceeding, and rendered judgment against the respondent, with costs, on the ground that, as the appellants claimed a right to the possession of the premises, he had no jurisdiction of the proceedings. From that judgment the respondent appealed to the county court of Chemung county, where the judgment or final order made by the justice was reversed. The propriety of the last judgment is the question here to be determined.

The Code provides that a person who, having peaceably entered upon real property, holds the possession thereof by force, may be removed therefrom, as provided in the foregoing title of the Code. Section 2233. Where the application is founded upon an allegation of forcible holding out of possession, the petitioner must allege and prove that he was in constructive possession at the time of the forcible holding out; and the adverse party must either deny the forcible holding out, or allege that he or his ancestor, or those whose interest he claims, had been in quiet possession for three years together, next before the alleged forcible detainer, and that his interest is not ended at the time of the trial. That Jacob Lowman owned and was in possession of the premises in question at the time of his death is in no manner disputed. That the premises were devised to Frank L. Clearwater by the last will and testament of Jacob Lowman is also undenied. The undisputed evidence likewise shows that Seymour Lowman was the duly-appointed guardian of Frank L. Clearwater, who was an infant. Thus the title was in Clearwater, and the right of possession was confessedly in Seymour Lowman, as such guardian. While he was temporarily, absent, the appellants, against the will and protest of the respondent’s servant, entered upon the premises, built a small shanty, into which they moved, and claimed to be in possession of the whole farm. Upon the respondent’s return, within, a few days after such entry, he sought to regain the possession of the premises, but was forcibly held out by the appellants. The only pretense or claim of any right to the possession made by the appellants was that Frances had said that she had some paper from Jacob Lowman, the character and provisions of which are totally unknown to this court, as they were to the court below. There was no proof whatever that any paper relating to, or which conferred upon the appellants, the title or right of possession to the premises, in fact existed, or ever had existed. The most that can be said is that the evidence showed that the appellants made a naked, unsubstantiated claim to the premises, without assertion or notice of its character. So far as the evidence is concerned, the appellants appeared to be total strangers to the property, without any right therein.

Under these circumstances, it seems to me that the justice erred in dismissing the proceeding and rendering judgment for the respondent. By reference to the petition, it will, be seen that it is alleged that Frank L. Clearwater was the owner in fee of the premises, and that the petitioner was the general guardian of his estate and person. The proof was undisputed that the title was in the infant, and that the respondent was his duly-constituted guardian, and was in possession when defendant unlawfully entered. Thus, it would seem that it was, in effect, both alleged and proved, that the respondent was in constructive possession of the premises, within the meaning of section 2245 of the Code,¹ at the time he was forcibly held out by the appellants. I am unable to concur in the conclusion that there was no allegation or proof that the petitioner was in constructive possession of the property, or that there was such a claim of right by the appellants as justified the justice in dismissing the proceeding. Under the evidence and proceedings, as they stood at the close of the trial, I am of the opinion that the respondent was entitled to the relief sought. Constructive possession is that which exists in contemplation of law, without personal occupation. I think the words “constructive possession,” as used in this statute, were intended to apply to a case where the petitioner had the title in fee, or an absolute right of possession by some other grant, and who would therefore he entitled to the actual possession, but for the forcible holding out of it by the person sought to be removed. Brown v. Volkening, 64 N. Y. 80; Bliss v. Johnson, 94 N. Y. 235; People v. Field, 52 Barb. 198, 210. If those words are not to be thus construed, they are meaningless; and I am unable to perceive how any one can be removed from premises forcibly held by him, where the possessio: was obtained by stealth, or in the absence of the person entitled thereto. I think a fair construction of the statute does not justify the conclusion that the respondent was not entitled to the relief sought because he failed to allege and prove that he was in constructive possession. That he has alleged and proved the facts which show him in such possession seems to me clear, and I cannot believe that the mere claim- by the appellants that they had a paper under which they claimed title was sufficient to defeat the respondents, when there was no proof as to its character, or even of its existence. If such be the law, the remedy given by the Code for forcible entry and detainer can be enforced only where the entry was by force. Can it be that if a man peaceably enters a house during the absence of its owner, and upon his return claims that he has some paper from the owner’s grantor, and refuses to remove, the owner has no remedy, except by an action of ejectment? I think not. It appears to me that "the provisions of the Code relating to this subject were intended to apply to a case like this.

But it is said that the cases of Bliss v. Johnson, 73 N. Y. 534; Id., 94 N. Y. 235; and Alexander v. Griswold, (Com. Pl. N. Y.) 17 N. Y. Supp. 522,—are adverse to the decision of the county court, and sustain that of the justice. In Bliss v. Johnson the action was for assault and battery. The defendants sought to justify on the ground that one of them owned the land, and on the first trial they offered to prove that the title to the locus in quo was in one of the defendants. This evidence was rejected, and the court of appeals held that the court erred in excluding the evidence. In delivering the opinion on the first appeal in that case, Andrews, J., said:

“An entry by a stranger, without right, during" the temporary absence of the plaintiff, would not have divested his possession, and he would have been justified in removing the intruder by force. But his prior possession gave him no such right, as against the defendants. The true owner of land, wrongfully held out of possession, may watch his opportunity, and, if he can regain possession peaceably, may maintain it, and lawfully resist an attempt by the former occupant to retake possession. Nor will he be liable to be proceeded against under the statute of forcible entry and detainer. There can be no wrongful detainer by the true owner, when the entry was both lawful and peaceable.”

On the second appeal, it was held that one holding the legal title to land, although not actually occupying it, will be considered as constructively in possession thereof, unless it is in the actual hostile occupancy of another under a claim of title. It was also held that the evidence -in that case was insufficient to establish a claim by adverse possession. It may be remarked, in passing, that the above case was not a proceeding under the statute relating to forcible entry and detainer, and hence the decisions have no bearing upon the question under consideration, except as they declare generally the right of the owners of land to its possession.

The Alexander Case was a proceeding under the statute relating to forcible entry and detainer, and in that case it was held that, a landlord having made a quiet entry and regained possession of leased premises under a claim of right, an action of unlawful detainer could not be maintained against him, or any person to whom "he thereafter leased the premises.

In Kelly v. Sheehy, 60 How. Pr. 439, it was held that the proper interpretation of section 2233 was that the proceeding for forcibly holding out may be maintained, not only in cases of forcible entry, but in cases where one peaceably enters upon real property without right, and holds the possession thereof by force, and that in that case, as the entry was without right, and the real property was held by force, it was held that the section applied.

I find nothing in the cases relied upon which seems to aid the appellants. On the contrary, they tend to uphold the decision of the county court. If the appellants had alleged and showed title, then the doctrine of these cases would have been applicable. Moreover, it would seem that, under the provisions of section 2245, the only defenses the appellants could interpose were (1) a denial of the forcible holding out; and (2) that they or their ancestor, or those whose interest they claimed, had been in quiet possession for three years before the forcible detainer, and that his interest was not ended or determined. I think the judgment of the county court is right, and should be sustained.

Judgment of county court affirmed, with costs.

MERWIN, J., concurred.

1 Code Civil Proc. § 2245, provides: “Where the application is founded upon an allegation of forcible entry or forcible holding out, the petitioner must allege and prove that he was peaceably in actual possession of the property, at the time of a forcible entry, or in constructive possession, at the time of a forcible holding out; and the adverse party must either deny the forcible entry, or the forcible holding out, or allege, in his defense, that he, or his ancestor, or those whose interest he claims, had been in quiet possession of the property, for three years together next before the alleged forcible entry or detainer; and that his interest is not ended or determined, at the time of the trial.”'