594. REEDER v. PURDY

SUPREME COURT OF ILLINOIS. 1866

41 Ill. 279

APPEALS from the Circuit Court of Kane County; the Hon. ISAAC G. WILSON, Judge, presiding.

The opinion of the Court contains a sufficient statement of the case. Mr. S. W. Brown, for the appellants, upon the principal question arising under the assignment of errors, contended that the person entitled to the possession of the same may enter upon the person in possession, and remove him and his goods, with such gentle force as may be necessary for the purpose. Citing 4 Kent's Com. (3d ed.) marg. p. 118; Taylor v. Cole, 3 Term, 431; Overdeer v. Lewis, 1 Watts & Serjeant; Harvey v. Brydges, 14 M. & W. 437 (Exchequer). . . . Mr. B. F. Parks, on the same side.

Messrs. Wheaton & Searles, for the appellees, insisted the law to be otherwise, that a person who is the owner of premises, even though he has the right of possession, has no right to enter upon another who is in the quiet and peaceful possession of such premises, and put him out by force, thereby taking the law into his own hands, in violation of the statute of forcible entry and detainer; and, if he does so, trespass will lie. . . . Citing Dustin v. Cowdry et al., 23 Verm. 631; Newton and Wife v. Harland et al., 1 Man. & Gr. 644 (39 Eng. Com. Law, 581)..

Mr. Justice LAWRENCE delivered the opinion of the Court:

These two cases, although separately tried, depend upon the same facts and present similar questions, and it will be more convenient to dispose of both in one opinion.

In October, 1862, Reeder, claiming to be the owner of a house occupied by Purdy and his wife, entered it, accompanied by the other appellants, for the purpose of taking possession. Purdy was not at home. Mrs. Purdy refused to leave, whereupon Reeder commenced putting the furniture out of doors. She resisted this, and he seized her and held her by the wrists, while Baker, one of the co-defendants, continued to remove the furniture. This was somewhat damaged, and some slight injury was done to the wrists of Mrs. Purdy by the force applied in holding her. The appellants finally abandoned their attempt to take possession and withdrew. Two actions of trespass have been brought, one by Purdy alone, and one by Purdy and wife jointly. The declaration in the suit brought by Purdy contains three counts, the first being for the assault upon his wife, the second for the injury to the personal property, and the third for breaking his close. and carrying off his furniture. The declaration in the suit of Purdy and wife contains two counts, both of which are for the assault upon the wife. There were pleas of not guilty, and an agreement that all

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defences might be made under them. A verdict for the plaintiff of $450 in one case and $500 in the other was returned by the jury, and a judgment was rendered upon it, from which the defendants appealed.

1. It is insisted by the appellants that Reeder, being the owner of the premises, had a right to enter, and to use such force as might be necessary to overcome any resistance, and that he cannot be made liable as a trespasser, although it is admitted he might have been compelled to restore to Purdy, through an action of forcible entry and detainer, the possession thus forcibly taken. The Court below instructed otherwise, and this ruling of the court is assigned for error.

We should not consider the question one of much difficulty, were it not for the contradictory decisions in regard to it, and we must admit the current of authorities, up to a comparatively recent period, is adverse to what we are convinced must be declared to be the law of this State. But the rule can not be said to have been firmly or authoritatively settled even in England, for ERSKINE, J., observes in Newton v. Harland, 1 Man. & Gr. 644 (39 E. C. 581), that " it was remarkable a question so likely to arise, should never have been directly brought before any court in banc until that case." This was in the year 1840; and all the cases prior to that time, in which it was held that an owner in fee could enter with a strong hand, without rendering himself liable to an action of trespass, seem to have been merely at nisi prius, like the oft-quoted case of Taunton v. Costar, 7 T. R. 431. Still; this was the general language of the books. But the point had never received such an adjudication as to pass into established and incontrovertible law, and a contrary rule was held by Lord Lyndhurst in Hilary v. Gay, 6 C. & P. 284 (25 E. C. L. 398). But in Newton v. Harland, already referred to, the Court of Common Pleas gave the question mature consideration, and finally held, after two arguments, that a landlord who should enter and expel by force a tenant holding over after expiration of his term, would render himself liable to an action for damages (for battery). But the later case of Meriton v. Combs, 67 E. C. L. 788, seems to recognize the opposite rule, and we must, therefore, regard a question, which one would expect to find among the most firmly settled in the law, as still among the controverted points of Westminster Hall.

In our country there is the same conflict of authorities. In New York it has been uniformly held, that, under a plea of liberum tenementum, the landlord, who has only used such force as might be necessary to expel a tenant holding over, would be protected against an action for damages. Hyatt v. Wood [supra, No. 593], and Ives v. Ives, 13 John. 235. In Jackson v. Farmer, 9 Wend. 201, the Court, while recognizing the rule as law, characterized it as "harsh, and tending to the public disturbance and individual conflict." Kent, in his Commentaries, states the principle in the same manner; but in the later editions of the work, reference is made by the learned editor, in a note, to the

case of Newton v. Harland, above quoted, as laying down "the most sound and salutary doctrine." In Tribble v. Trance, 7 J. J. Marsh. 598, the Court held, that, notwithstanding the Kentucky statute of forcible entry and detainer, the owner of the fee, having a right of entry, may use such force as may be necessary to overcome resistance and protect himself against an action of trespass, under a plea of liberum tenementum. On the other hand, the Supreme Court of Massachusetts has held, that, although trespass quare clausum may not lie, yet, in an action of trespass for assault and battery, the landlord must respond in damages, if he has used force to dispossess a tenant holding over. The Court say, "He may make use of force to defend his lawful possession, but being dispossessed, he has no right to recover possession by force and by a breach of the peace." Sampson v. Henry, 11 Pick. 379. . . . But by far the most able and exhaustive discussion that this question has received, was in the case of Dustin v. Cowdry, 23 Vt. 635, in which Mr. Justice Redfield, delivering the opinion of the Court, shows, by a train of reasoning which compels conviction, that, in cases of this character, the action of trespass will lie. And he also says:

"Whether the action of trespass quare clausum, or assault and battery, [will lie,] is immaterial, as under this declaration, if the defendant had pleaded soil and freehold, as some of the cases hold, the plaintiff might have new assigned the trespass to the person of the plaintiff, and a jury, under proper instructions, would have given much the same damages, and upon the same evidence, in whatever form the declaration is drawn."

The case of Massey v. Scott, 32 Vt., cited as inconsistent with this case, does not in fact conflict with it. It only holds that trespass quare clausum will not lie in behalf of a tenant for an entry not within the statute of forcible entry and detainer.

In this conflict of authorities we must adopt that rule which, in our judgment, rests upon the sounder reason. We cannot hesitate, and, were it not for the adverse decision of Courts which all lawyers regard with profound respect, we should not deem the question obscured by a reasonable doubt. The reasoning upon which we rest our conclusion lies in the briefest compass, and is hardly more than a simple syllogism. The statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. Such entry is, therefore, unlawful. If unlawful, it is a trespass, and an action for the trespass must necessarily lie.

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It is urged that the only remedy is that given by the statute, an action for the recovery of the possession. But the law could not expel him who has entered if his entry was a lawful entry; and if not lawful, all the consequences of an unlawful act must attach to it. The law is not so far beneath the dignity of a scientific and harmonious system that its tribunals must hold in one form of action a particular

act to be so illegal that immediate restitution must be made at the costs of the transgressor, and in another form of action that the same act was perfectly legal and only the exercise of an acknowledged right.

It is urged that the owner of real estate has a right to enter upon and enjoy his own property. Undoubtedly, if he can do so without a forcible disturbance of the possession of another; but the peace and good order of society require that he shall not be permitted to enter against the will of the occupant, and hence the common-law right to use all necessary force has been taken away. He may be wrongfully kept out of possession, but he cannot be permitted to take the law into his own hands and redress his own wrongs. The remedy must be sought through those peaceful agencies which a civilized community provides for all its members. A contrary rule benefits only that condition of society in which the principle is recognized that

He may take who has the power,

And he may keep who can.

If the right to use force be once admitted, it must necessarily follow, as a logical sequence, that so much may be used as shall be necessary to overcome resistance, even to the taking of human life. The wisdom of confining men to peaceful remedies for the recovery of a lost possession is well expressed by Blackstone, book 4, p. 148:

"An eighth offence," he says, "against the public peace, is that of a forcible entry and detainer, which is committed by violently taking or keeping possession of lands and tenements with menaces, force and arms, and without the authority of law. This was formerly allowable to every person disseized or turned out of possession, unless his entry was taken away or barred by his own neglect or other circumstances, which were explained more at length in a former book. But this being found very prejudicial to the public peace, it was thought necessary, by several statutes, to restrain all persons from the use of such violent methods, even of doing themselves justice, and much more if they have no justice in their claim. So that the entry now allowed by law is a peaceable one; that forbidden, is such as is carried on with force, violence, and unusual weapons."

In this State, it has been constantly held that an entry is forcible, within the meaning of this law, that is made against the will of the occupant.

We state, then, after a full examination of this subject, that in our opinion the statutes of forcible entry and detainer should be construed as taking away the previous common-law right of forcible entry by the owner, and that such entry must be therefore held illegal in all forms of action.

2. In order to prevent misapprehension we would say, in conclusion, that, for a mere entry by the landlord upon the possession of his tenant holding over, unaccompanied by any trespass upon either the person

or personal property of the occupant, only nominal damages could be recovered, because the plaintiff has no legal right to the possession. The gravamen of actions of this character is the trespass to the person, and goods and chattels of the tenant. If, for example, a tenant of a house should remove his family and furniture at the end of the term, but refuse, without reason, to surrender the key to his landlord, and still claim possession, the landlord might, nevertheless, force the door of his vacant house, without incurring a liability to more than nominal damages. He would be liable to an action of forcible entry and detainer, and to an action of trespass, in which nominal damages would be recovered, because the entry would be unlawful, but to nothing more. But for an entry, while the house is still occupied by the family and furniture of the tenant, and for forcibly thrusting them into the street, or attempting to do so, he would be liable to such damages as a jury might deem the case to require. . .

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The judgment in both of these cases must be reversed and the case remanded. Reversed and remanded.

595. STERLING v. WARDEN. (1871, 51 N. H. 217, 232.) FOSTER, J. . . . It is clearly the English law, and, as we believe, the strongly preponderating opinion of the American Courts, that no civil action lies against a landlord for regaining with force the possession of the demised premises, unless there is an excess of force, and then only for such excess. . . . In Harvey v. Brydges, 14 M. & W. 437, PARKE, B., lays down the law in these terms: "Where a breach of the peace has been committed by a freeholder, who, in order to get possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification, that the plaintiff was in possession of the land against the will of the defendant, who was the owner, and that he entered upon it accordingly, even though in so doing a breach of the peace was committed." ALDERSON, B., concurred. And this doctrine has been fully confirmed in Blades v. Higgs, 10 C. B. N. S. 713. See also Pollen v. Brewer, 7 C. B. N. S. 371; Davison v. Wilson, 11 Ad. & E. N. S. 890 (63 Eng. Com. Law); Burling v. Read, 11 Ad. & E. N. S. 905; Davis v. Burrell, 10 C. B. 821; Patrick v. Colerick, 3 M. & W. 483. The result of English authority then is, that an entry by the landlord with force is illegal only to the extent of the penalties provided by the statutes of forcible entry and detainer, or other criminal process, and that no right of common-law action by the tenant is to be inferred from the statutory prohibition.

If we turn now to the American cases, we shall find the law, as indicated by the English authorities, even more strongly and unequivocally maintained. Such is the purport of the decisions, without disturbance of the current, setting in one direction, in the States of Massachusetts, New York, Pennsylvania, North Carolina, South Carolina, New Jersey, Kentucky, Missouri, and probably in some other jurisdictions. And in our own State, although the subject does not seem to have been largely discussed (perhaps because the principle has been regarded as too firmly established to admit of serious question), the authorities point unmistakably in the same direction. See Wilde v. Cantillon, 1 Johns. Cas.