The People v. Fields.

To entitle the complainant to the protection of the statute, he must have at least a right to the possession. (2 R. S., 508, §3.) And a complaint would be fatally defective if it alleged possession only, without alleging a right to it.

A right of possession gained by disseizin is sufficient. So it seems, one who enters under a valid lease or contract of sale and who is holding over after his term has expired, or his contract has become forfeited, may be deemed still seized of his original estate, and entitled to the protec tion of the statute against a forcible entry upon his possession by the

owner.

But one, placed on the lands of another, without any terms prescribed or rent reserved, is not within the protection of statute; but is strictly a tenant at will at common law. An entry by the landlord, and notice to quit, will terminate the tenancy, and revest the possession in the landlord, though the tenant be not actually turned out.

A parol license to enter upon another's premises, to erect and maintain a house is revocable and confers no right whatever upon the licensee to occupy the premises after it is revoked.

Such a license operates only as an excuse for the act, which would otherwise be a trespass, and confers neither possession nor right to possession as against the owner, within the meaning of the statute.

MOTION for a new trial upon a case and exceptions by defendant after verdict for the relator, finding the defendant guilty of forcible detainer, but not guilty of forcible entry. Motion by the relator for an order of restitution.

Appeal from the order of the court at Special Term, denying a motion made by the defendant to quash the proceedings on account of the insufficiency of the complaint.

All these motions were heard together. The preliminary proceedings before the county judge, and the subsequent proceedings before the traverse was sent down to the circuit for trial, are set out at length in the case, as reported in 52 Barb., 198, which renders it unnecessary to recapitulate them here. The additional facts and circumstances appearing upon the last trial are referred to in the opinion of the court.

D. Pratt, for the defendant. The complaint was not sufficient. It did not allege that the relator had an estate in freehold, or for a term then subsisting, or some other right to the possession thereof, as required by the statute.

The People v. Fields.

(2 R. S., 508.) It is not enough to allege, generally, that the party is entitled to possession. The particular title

showing the right of possession should be set forth. (Rev. Notes, 5 R. S., 492; People v. Nelson, 13 J. R., 340; Carter v. Newbold, 7 How., 166; People v. Shaw, 1 Caines, 125; Same v. King, 2 id., 98; Same v. Reed, 11 Wend., 157.) It is not sufficient to allege circumstances from which a title may be inferred. In pleading, facts must be alleged, and not the evidence of facts. Besides, the statute requires, peremptorily, that the nature of the title be set forth in the complaint.

The complaint not being sufficient to give the officer jurisdiction, the proceedings may be quashed at any stage of the proceedings. (People v. Smith, 24 Barb., 16; People v. Reed, 11 Wend., 157.) The proceedings are special, and are, therefore, subject to the rules applicable to courts of limited jurisdiction. (Thatcher v. Powell, 6 Wheat., 119; Denning v. Corwin, 11 Wend., 647, 652; Smith v. Fowle, 12 Wend., 9, 11.) When the want of jurisdiction appears, the judgment of any court will be void. (Bloom v. Burdick, 1 Hill, 130; Varnum v. Wheeler, 1 Den., 331; Seaman v. Stoughton, 3 Barb. Ch., 344; Dresser v. Brooks, 3 Barb., 429.)

Under our statute it is all important that the relator should be required to state in his complaint, his title, and swear to it, as it cannot be controverted upon the trial; and as he seems to be entitled to restitution, if he succeeds, although he has no right or title whatever. Our statute was designed to establish the law in relation to forcible entry and detainer, in accordance with the law as it was already settled by adjudication. (Rev. Notes, 5 R. S., 493, Edm.'s ed.) It was held in People v. Nelson (13 J. R., 340), the nature of the title should be set out in the complaint. The same has been substantially held since the statute. (11 Wend., 157.) Indeed the same was held by this court in this case, as I understand the opinion of Justice MULLIN. He seems to have fallen into an error in regard to the objection being taken before the officer who took the inquisition. (52 Barb., LANSING-VOL. I.

29

The People v. Fields.

198.) It is therefore submitted, that the motion to quash the inquisition should have been granted.

The decision of the judge upon taking the inquisition was clearly erroneous, and so held by this court. (52 Barb., 198.) It was the duty of the Supreme Court, therefore, upon certiorari, to quash the inquisition for any erroneous ruling of the judge upon taking it. (People v. Nelson, supra; Same v. Reed, id.; Same v. Smith, id.; Carter v. Newbold, id.; People v. Wilson, 13 How., 446.)

The shop in question was not real estate, but a personal chattel, and could not itself be the subject of a forcible entry and detainer. (Smith v. Benson, 1 Hill, 176; Ford v. Cobb, 20 N. Y., 344; Ombony v. Jones, 19 N. Y., 234.) It was not affixed to the freehold, and was capable of severance without injury to the freehold. The owner of the lot and the owner of the building treated it as personal property, and in a state of severance. The owner of the building never claimed any interest in the realty. It was sold to the relator as a personal chattel. Forcible entry and detainer is a wrong done to real estate, and not a wrong done to personal property. (2 R. S., 507; 1 Russell on Crimes, 233.)

No possession was proved in the relator at the time of the alleged forcible entry, but on the contrary, the possession of the premises was in the defendant. There is no pretence of an actual possession of the land by the relator. The shop had been vacant and locked for some two months before the alleged entry. Possession of the land surrounding the shop, had been surrendered to defendant nearly a year before. The relator was not in the constructive possession of the premises. The shop being personal property, the fact that it was on defendant's land, would not make the relator constructively in possession. (Russell on Crimes, 309.) A man may be in possession by his wife, children or servant, but his cattle or property on the ground do not preserve his possession. (1 Russell, supra; Addison, 43, 316, 353.)

But constructive possession in the relator is not sufficient. He must have the actual possession. (2 R. S., 509.) The

The People v. Fields.

statute requires that the possession be actual. In cases of forcible detainer, the relator can only show constructive possession, but that does not mean constructive possession implied from ownership, but a temporary absence only at the time of the entry. Unless there be possession in another at the time of entry, whatever the degree of force the proceeding cannot be sustained. (Addison R., 43, 316, 353.) The possession must not be scrambling, but quiet, peaceable and actual. (Ashmead R., 140; 17 Conn., 209.) Surveying lands, building cabins, and leaving them unoccupied, is not such a possession as is necessary to prove a forcible entry. (Addison, 43, 316, 353.)

The defendant was in actual possession of the premises. All of the premises except what was actually covered by the shop, was surrendered to the defendant the year before, and he took possession and excavated it for the basement of the store, which he was about to erect. That portion upon which the shop rested was in his constructive possession. Ownership would give him constructive possession in the absence of actual possession by any one else. (St. John v. Palmer, 5 Hill, 599.)

But clearly constructive possession of the shop alone would not, of itself, constitute a possession of the lot. The ruling of the learned judge at the circuit was therefore erroneous. There was clearly no actual occupancy of the shop at the time of its removal. It had stood there unoccupied for more than two months.

There being no actual possession of the shop, the least that can be claimed is, that the question of the possession of the lot, must depend upon the intention of the parties. It seems clear to me that if another's horse or wagon be left upon my premises, that that alone would not necessarily put the owner in possession. If this be true, what reason is there for holding that any chattel, left in the same way, would have a different effect. It was, therefore, a question of fact for the jury to determine, whether, when Fish promised to move off the shop, and allowed defendant to excavate, he did not intend to sur render the entire possession of the land.

The People v. Fields.

The exceptions to the rulings of the justice, in regard te admissions of testimony, and to the charge and refusals to charge, were well taken.

The complaint is for forcible entry, and the jury negative it. The verdict of "guilty of forcible detainer" is not responsive and cannot be sustained.

B. F. Chapman, for the relator. It is too late for the defendant to move to set aside the inquisition after having traversed it. When a party answers in chief a pleading of his adversary, he is precluded from availing himself of the invalidity of the pleading he answers. The rule is applicable to criminal as well as to civil cases, and especially to those like this, which partake of the character of both classes. (1 Leach Crown Cases, 11, 420; 1 Chit. Cr. L., 303.) The inquisition was found June 11, 1863. The return was filed June 25th, and the traverse served July 14th, 1863. The objections to the complaint were known to the defendant and raised by him before the trial and inquisition, June 9, 1863. The objections having been raised to the complaint before the making of the inquisition, and decided, and also raised upon each trial and decided, the defendant derives no new benefit by reason of a special motion. The motion is only necessary, where the defendant failed to raise the objections before the judge before whom the inquisition was taken. (People v. Field, 52 Barb. R., p. 210; The People v. Reed, 11 Wend. R., 159.)

The statute does not require us to set forth the "title of the complainant." "Stating a conclusion of law" is not objectionable. We state a fact that brings us within the statute, to wit; a long, quiet, peaceable and uninterrupted possession, for more than five years." The authorities all hold that to be sufficient. Peaceable possession is prima facie evidence of estate so as to bring the complaint within the statute. (11 John. R., 504; see 11 Wend. R., 157; 9 Wend. R., 50; 7 How. Pr. R., 441; 29 Barb. R., 208; 49 Barb. R., 89.)