Pelavin v. Misner , 241 Mich. 209 ( 1928 )

The question here presented is: May a landlord, if rent is unpaid and the tenant is guilty of permitting an improper use of the premises, visit the premises leased, request the wife of the tenant in charge of the premises to step outside of the building to show a pretended purchaser where repairs are needed, then lock the door and when the woman immediately enters by opening another door with a latch key, forcibly prevent her from going upstairs and thereby obtain a possession recognized as valid and to be maintained under injunctive process from a court of equity? I think not. Such an invasion, under color of a legitimate purpose, supplemented by stratagem or trick, carried out under a false pretense and successful for a moment only, did not result in a possession recognized by the law. But, even if a peaceable entry, it was followed by a forcible detainer when the entrant evinced the purpose by force, if necessary, to prevent the wife of the lessee from going about her affairs in the building. I think the evidence in this case shows a forcible entry and detainer.

This court said in Seitz v. Miles, 16 Mich. 455, and repeated it in Mclntyre v. Murphy, 153 Mich. 342:

* * * "but if the entry be obtained by stealth or stratagem, or without real violence, and the party entering evinces his purpose in having entered to have been the expulsion of the party in possession, and it is followed up by actual expulsion by means of personal threats or violence, or superior force, it will amount to a forcible entry."

The act of entry is coupled with the act of expulsion when the acts are contemporaneous or so close in point of time as to constitute one occurrence. There was a forcible entry and detainer and the court below should have so held. On this point we need but quote from the testimony of Leonard C. Lendzion, a witness for plaintiffs:

"I am a lawyer. * * * I went to the Harding apartments in the city of Detroit on the 10th day of December, 1923, in company with Mr. Pisula and the Pelavin Brothers, Sam and Morris. When we got to the building, Sam and myself went in first. The others remained outside — where I don't know. * * * Mrs. Misner was in the lobby in the building when we got there. Sam Pelavin informed Mrs. Misner that I was a buyer, and then she immediately proceeded to show me through some apartments and after noticing two or three apartments, then Mr. Pelavin stated that I was very much interested in the boiler or the steam plant, and I said yes, * * * and so we went down through the corridor and down into the boiler room and there we looked around, and I was mostly interested in the janitor to see if he was around there, and he wasn't there. And after remaining in the boiler room about two minutes, then Mr. Pelavin stated that there was something wrong with the walk in the rear of the building. I believe he said the cornice or some part of the walk. And Mrs. Misner was surprised to hear that and I said that I would like to see it. And then Mr. Pelavin led Mrs. Misner and myself towards the rear door. Mrs. Misner and myself went out, and after we were out I heard the door slam, and a thud — presumably a lock of some kind was latched. And Mrs. Misner got out maybe five or ten feet from the sidewall of the building in the alley towards Cass avenue and she looked up, and so did I. Asked me if I seen anything wrong, and I said 'No.' At that time we were in the alley. I know where the court is — we had gone out through the court — we had to to see that side of the building. * * * Then I handed Mrs. Misner a paper and told her that I was delegated to serve her with that paper, and she accepted it, and while she was reading it, I told her what it was, informed her of the fact that it was a forfeiture of the lease for nonpayment of certain instalments on furniture and rents. * * *

"Q. After you served the notice upon Mrs. Misner, did Mrs. Misner say anything?

"A. Yes. She said that, 'Then this is nothing but a ruse,' or some language to that effect. Perhaps, maybe, the word 'trick' was used 'to get me out.' I says, 'That is it, exactly,' and then told her perhaps some day she might be in the same position as the Pelavin Brothers and would resort to the same thing. And altogether I would say that we were out there about five minutes. * * * And then we walked down the alley, that is, the alley towards the front of the building. * * * and Mrs. Misner went into the vestibule. * * *

"Q. And what is your estimate of the length of time that elapsed between your going out of the Harding Apartments with Mrs. Misner and your leaving the premises, at which time Mrs. Misner was still in the vestibule?

"A. At least ten minutes."

Tricks and stratagems have been employed to get possession but never so bald-faced and inept as in this instance.

The Pelavins were guilty of a forcible entry and detainer, and their asserted peaceable entry and possession was but a travesty. The decree here should so declare and the case should be remanded to the circuit to determine the damages occasioned defendants Misner. Plaintiffs claim this may not be done, although asked by the answer in the nature of a cross- bill. In the bill plaintiffs set up a peaceable entry and possession and obtained an injunction, and defendants Misner had a right to traverse the claim and seek their damages in the very suit and forum selected by plaintiffs. Defendants Misner should recover costs of this court.

FELLOWS, CLARK, and SHARPE, JJ., concurred with WIEST, J.

The late Justice SNOW and Justice STEERE took no part in this decision.