Smith v. Grant

The owner of the house and lot in question, gave notice to her tenant to quit. He did not, and she instituted a process of forcible entry and detainer before, a magistrate. This case was tried and judgment rendered against her and in favor of the tenant, the present plaintiff. Thereupon, two days afterwards, she executed a bill of sale to Ray, one of the defendants, of the house (which had a cellar and underpinning,) "to the ground, including the underpinning!” Ray, on the same day, notified the plaintiff in writing, of his purchase, and requested him to quit, and he refused to do so. On the same day Ray sued out a writ of replevin "for the house,” and put it into the hands of the other defendant, then sheriff of the county, for service, and requested him to replevy the house, and he did replevy the house, and removed the plaintiff and his family and furniture, and put Ray into possession. The plaintiff brings this action of trespass quare clausum, for the entry and removal, against the sheriff and Ray, who assisted him.

It is very clear that, if the plaintiff had rights as a tenant in possession, those rights could not be affected by the sale of the building, so far as to justify a forcible removal, without sufficient notice. A sale may operate to terminate a tenancy at will, when it is of the whole estate, and of the fee of the land and in the premises.

It is unnecessary to consider the effect, as between the grantpr and grantee, or vendor and vendee, of the sale of *259a house alone, annexed to the freehold as this was. Assuming that it made it personal property, yet, if another person was a tenant in possession, his rights cannot be lost or changed, by this change of the nature of the property, from real to personal. If a man owns a house which, by reason of its having been built on the land of another, by his consent, is regarded in law as personal property, leases it to another, the relation of landlord and tenant, and all the legal rights and duties of such relation exist and must be performed. In such a case, could the landlord, if he claimed that the tenancy at will was ended, sue out a writ of replevin, and cause it to be served by turning out the tenant and his goods and furniture? If he could do this, it would be a new mode of proceeding and would supersede all the provisions of law in relation to forcible entry and detainer and the notice required, and enable a dissatisfied lessor to adopt a remarkably summary mode of ejectment, without resort to auy of the modes pointed out in the statute or common law. Where the property when leased was real estate, the same result might be obtained, by pursuing the course apparently adopted in this case, viz., sell out the building to the foundation, calling that personal property, leaving the foundation, cellar, &c., the real estate of the original owners. Whether real estate can thus be parceled out, by a common bill of sale, so that a house fixed to the freehold, and part of it, can be thus divided and held permanently, while remaining thus fixed, part personal and part real estate, might deserve consideration, if necessary to the determination of the case. It is not the case, where such a building is sold, to be immediately removed and it is so removed. The dwellinghouse, fixed like this, when sold by a bill of sale, was as much real estate as the soil on which it rests. Oujus est solum ejus est usque ad coelum.

But, granting that it was thus made personal property, and that, if unoccupied, it might be the subject of replevin. Can the writ of replevin authorize the forcible removal of a tenant and his family; and, if it could in any case, must *260there not be a notice by the officer to the tenant to quit, giving him a reasonable time to x’emove?

In this case a notice was given by the purchaser, on the .7th of Nov., that he had purchased the house, with a request to quit, which plaintiff refused to do. On the 10th this writ of replevin was put into the officer’s hand, and on that day executed. It does not appear that the officer made any request of the plaintiff to remove, or give him any time to do so. No time for removal had been named in the written notice by Ray. It was but three days afterwards that the officer executed the writ of replevin. We think, that even if such a replevin writ could be legalty served, by removing the tenant and his family, it could only be done after giving reasonable notice and time sufficient to make the removal. It would be such a direct interference with what the law looks upon as almost sacred, — a man’s dwellinghouse, when occupied by himself and family, that nothing short of a refusal or neglect to remove, after sufficient notice, could justify an officer, under a writ of replevin, in forcibly ejecting the family with its goods and furniture, if it could be executed by removal. Anything short of this would be an intolerable abuse of legal process.

Usually, the purpose of a replevin suit is to try the title to the specific article; and, in contemplation of law, the goods, in a certain sense, are in the custody of the law, to await the decision between the claimants. Walker v. Osgood, 53 Maine, 424. In the common case of moveable and portable articles, — as it is necessary that some one should take and keep possession to prevent loss or destruction, our law differs in this respect from the English law, and allows the plaintiff to take the article into his possession, upon giving bond to have it forthcoming to answer the judgment, if against him. Now, a dwellinghouse is not a portable article, or one easily removed, or likely to disappear, or be concealed. Therefox-e, all the real purposes of the law would'be complied with, by a formal delivery of the house, as it stands, to the plaintiff. There is no necessity of a forcible removal of the tenant and his family-.

*261The writ of replevin was never intended as a means of interference with the sanctity of home, and as an instrument to remove summarily a tenant, who has a possession which he has a right to retain, until removed by due process of the law, made and provided for such cases.

We think the Judge did not err in refusing the requested instruction as to the justification of the officer. There can be no doubt that the ruling, that, if the house was real estate, no action of replevin could be legally instituted, was correct. In the view we have taken of the case, it is not necessary to determine whether.the Judge should not have determined this question, rather than have submitted it to the jury. The case finds that other instructions, not excepted to, were given. We presume that the Judge properly explained and stated the law, and what facts must be proved, to sever the house from the freehold and make it personal property. This would be proper when it is a mixed question of law and fact.

We cannot sustain that portion of the charge, which allowed the jury to find, in addition to the damages to the furniture, "a reasonable compensation to the plaintiff and wife for the injury done to their feelings, in being removed from the premises.” The action is in the name of the husband alone. There is no allegation of loss to him by injury done to the wife. The rule given was not the one allowing vindictive or exemplary damages, but confined to the injury to the feelings of each. The instruction in terms authorized the jury to give a compensation in this action to the wife for injury to her feelings, independently of the husband. The jury, however, found specially that the injury to the furniture was twenty-five dollars, and to the plaintiff and wife fifty dollars. There can be no apportionment of this last sum. Exceptions sustained.—New trial granted,

unless the plaintiff will remit all but $25 in the verdict.