Elkanah Morton, Plff, in review vs. Robert Thompson & als., 13 Me. 162

The opinion of the Court, after a continuance, was drawn up by Weston C. J. Upon the decease of John Thompson, the owner of the estate in controversy, which took place in October, 1826, the plaintiff in review became in virtue of his will, entitled to the use and occupation of the same estate, for the period of three years. He held over; and thus continued the tenant at sufferance of the heirs at law of the deceased, who were entitled to the reversion, which had not been devised.

On the first day of June, 1832, when the forcible detention is proved to have taken place, the plaintiff in review had been in quiet possession of the premises for nearly six years, from the decease of John Thompson. By the statute of 1824, ch. 268, directing the proceedings in forcible entry and detainer, § 4, it is provided, that the act shall not extend to any person, who has been in quiet possession of any lands or tenements, three whole years together, next preceding the filing of the complaint. By this act the former statute of 1821, ch. 79, was repealed.

That statute, as well as that of Massachusetts, statute of 1734, ch. 8, 1 Mass. Laws, 193, has the same provision ; to which however there is subjoined this qualification, “ and whose estate therein is not ended or determined.” Under the prior laws, the estate of the plaintiff in review having ended, a forcible detention would have rendered him liable to this process.

But since the statute of 1824, the legislature have thought proper to leave the party injured to the ordinary legal remedies, and have withheld from him the remedy here sought, where the party resisting his right, has been in quiet possession for three years or more. The omission of the qualification in the last act, leaves the proviso to its full operation, which very clearly forbids this process against a party so long in possession. To sustain it then, under these circumstances, would be an open and direct violation of the statute.

Upon the facts in the case, we are therefore of opinion, that the plaintiff in review is entitled to judgment.