Robertson et al. vs. Robertson et al., 2 B. Mon 235

Chief Justice Robertson delivered the Opinion of the Court. William and Gaither Robertson had been living in Washington county with their father and mother, for at least a year preceding the death of the latter, who survived her husband, and was married on the 14th of November, 1840. After their father’s death, William superintended the premises for his mother, and seems to have claimed an exclusive right thereto, in remainder after her death. After her burial on the 14th, William and Gaither remained in the house until the 16th, when the former went to springfield to attend Court.

Whilst he was thus absent, Samuel Robertson, another brother residing in Springfield as an apprentice, went to the house to cooperate with Gaither in taking exclusive possession and keeping William out. William returned in the evening of the 16th November, in company with Edward Paxton, and meeting Gaither and Samuel at the front door, which he attempted to enter, was repulsed with force.

He and Paxton then opened a window which had been barred by his said brothers, and Paxton helping him into the house through the window, he asked for a dirk, and thereupon Gaither and Samuel abandoned the house, and Paxton and family were instantly put into the exclusive possession by William, some of the household goods of Paxton being already there in his wagon.

It is technically erroneous to find one guilty of a forcible detain-er, who has been guilty of no actual force; but if such an one has been guilty of a forcible entry, the finding will be regarded as substantially good.- Gaither and Samuel Robertson then sued out a warrant againt William Robertson and E.

Paxton, and another for a forcible entry and detainer.; and a jury in the county found William guilty of the forcible entry and detain-er, and Paxton guilty of a forcible detainer “under William.” That inquisition being traversed, was found true in the Circuit Court, where judgment of restitution of the exclusive possession was rendered in favor of the traversees. That judgment is now sought to be re. versed. The judgment against Paxton for a forcible detainer •only, when there was no proof of actual force in the detention, is technically erroneous; but, as by co-operating with W.

Robertson in his entry, he was, in judgment of law, a co-principal, and therefore guilty of a forcible entry if William was guilty of such entry—we will not regard as essential an error in the mere form of the inquisition. The jury had a right to infer that, between their mother’s death and the affray on the 16th, William sxiá Gaither Robertson were in the actual joint possession of the premises; for though William claimed the exclusive remainder, neither the foundation of that claim nor Gaither's recognition of it has been shown.

Whether Samuel Robertson, after he had entered, might be deemed to have been jointly possessed as a co-parcener, the jury might perhaps have decided either way.

And though if Williant only intended to maintain a joint enjoyment and not to expel his brothers, their abandonment might be considered voluntary and his entry not forcible, as against their joint possession with him; yet from all the facts, the jury had a right to infer that he intended to expel them and deliver the exclusive possession to Paxton, who seems to have gone with him prepared for that purpose; and if such were his purpose, and his calling for a dirk to execute it, induced S. and G. Robertson to leave, he and his coadjutor, Paxton, were both guilty of a forcible entry to some extent: Comijn's Dig.

Forcible Entry, A. 2, n. o. Hawk. Plea. Gr. c. 64, s. 27. But the facts as exhibited in this record, did not, in our judgment, authorize the verdict and judgment as rendered, for restitution of the exclusive possession. Two parcener» are in possession, one claiming the ab--who is temporal oüíeralonnhis xe,tum attempts to Jceep him out,, but is unsucter^hiot8 dit efectdsonltoSbee and. ,if success! ble entry and deofmeiresütution jjan the joint, not the exclusive possession.

Whether such a judgment can be maintained, depends on the legal solution of the question whether, upon the facts hereinbefore recited, Gaither and Samuel Robertson could be deemed to have been in the exclusive actual possession of the house when William entered, or, in other words, whether he had been actually disseised, unless he elected to so consider himself. The jury had no right to presume that William had abandoned, or intended to abandon, his actual posses-v sion when he went to Court.

The facts conclusively repel any presumption of such intention, and therefore his momentary absence could not be distorted into a constructive dereliction. In judgment of law, his actual . . . ... . possession, whether sole or joint, still continued, unless, in the mean time there was an actual disseision, and we are of the opinion that he had not been disseised by Samuel’s entry, and the mere intention manifested by Gaither and Samuel to prevent his return. Even if Gaither was jointly possessed with William, his mere resolution to expel him did not operate ¡per se, as an expulsion actual or constructive.

A joint tenant does not . , . .. . . acquire an exclusive possession, or dispossess his co-tenant, by resolving in his own mind that he,will arrogate the sole occupancy, and thereby evict his associate. Nor could Samuel’s entry with the mere intention to exclude William operate as a disseisin in fact, until William submitted thereto. The entry upon, the one -who is in possession, but temporarily absent, does not amount to a disseisin in fact, ■without he who is entered upon elects to be disseised. Disseisin . of things corporeal must be by entry and actual dispossession.

One co-parcener dispossessing another should not, on a finding in favor of the latter, be restored to the exclusive possession, but only to his joint possession. If one of two joint occupants of a house, on returning from church, whither he had gone only an hour before with his wife, should re-enter his dwelling against the consent and even physical resistance of his co-tenant, it would be absurd to assume as the law of the land, that his temporary absence and the mere will of him who remained at home, had disseised him and made his return a tortious intrusion on any actual possession.

His right thus to re-enter, was as clear and perfect as that of the other to resist being forced out could have been. A successful resistance of his re-entry would, in fact and in law, have been an eviction, for he had never been dispossessed by his own act or any previous act of the co-tenant; and can it be argued, that in such a case, the only legal mode of reinstating himself and wife under their own roof, would be a warrant of forcible entry and detainer, which, on a traverse, might not open the door to them for months, possibly not for a year?

Or suppose a stranger had intruded in his absence, and presenting himself at the door on his return, had resisted his entry, would he, by entering nevertheless, against the will of such interloper, be guilty of a forcible entry on another’s possession, for which he might be evicted by warrant, and the intruder restored by the arm of the law? Such an idea would be worse than ridiculous.

He had never been disseised, and of course there was no actual and exclusive possession in any other person—his own actual possession still continued, ‘ ‘Disseisin of things corporeal, must be by entry and “actual dispossession, as if a man enters, by either force “or fraud, into the house of another, and turns, or at least “keeps, him or his servants out of possession:” 3 Bla. Com. 169; 3 Co. Lit. 4.

If, therefore, Gaither and Samuel Robertson had, by force or otherwise, kept William out, or he had elected to retreat and avoid the peril of collision, be would thereby have been disseised, and could therefore have maintained a warrant for restitution; but he determined otherwise, and was therefore neither put out nor kept out of his actual possession, which he had neither abandoned nor lost. Harlan and Morehead 8f Reed for appellants; McHenry for appellees. If therefore,, there is, as to William.

Robertson, any legal right to restitution in this case, it cannot be, as adjudged below, a right to the exclusive possession, but only to an occupancy in conjunction with him. And consequently, as in our opinion, the evidence did not authorize the verdict and judgment as rendered, for restitution of the entire and exclusive possession, the judgment is reversed and the cause remanded.