People ex rel. Brinkerhoff v. Nelson

Spencer, j.,

.delivered1 the opinion of the .court.. The de-- - fendant-moves, in arrest Of judgment, and for a-'ne-w trial, on the' ground,'.'that the. evidence offered on. his part, which went to . show a title in himself to the-premises, was overruled.

The’inquisition does hot state, that Brinkefhoff was either seised of the premises, ór that he had a term of years therein* yet to come' and un'espired,: it states; only, that Stephen Brin-" lierhojp, ot• Poughkeepsie, aforesaid, blacksmith, long since lawfully,, and-peaceably, was possessed of, and in, one messuage* .with the appurtenances in, &c,,.and his possession so-continued, until Arnold Nelson, late of, &c„ bn the 8th day of May, instant,, with strong hand and armed power,, into the messuage aforesaid',. with the.appurtenances aforesaid, did enter, and him., the said *343 Stephen, thereof dispossessed,/and. with strong hand expelled,’’ &c. , ■. • ■' '

There Can be no doubt that this indictment is. bad in substance. The 6th section of th.e statute (1 N. R. L. 98.) to prevent' forcible entries and detainers, enacts, that the a'ct “ shall extend as well to tenants for years, and guardians, as to such as have estates of freehold.” The statute .of' 21 Jac. ch. • 15., extended the remedy of the former statutes of forcible entry and detainer, to lessors for years and copyholders; and- in the case of the Queen v. Taylor, (7 Mod. 123.,) where-the indictment was upon the statute of 8 Henry VI., ch. 9.,' it did not allege, that the party had been seised,'and disseised-by force! and, upon a motion to quash the indictment, Holt, Ch. J„ with the concurrence of the whole court, after stating, the extension of the Statutes, by the.statuie of 21 James > ch. 1.5., observes, V£ the present-case is upon the statute of Henry: VI., upon which you must always.allege a freehold and seisin in somebody,.and if it be an entry upon a lessee for y.Cars, you must, say, the-entry was made into the freehold of A., in the possession of 13.) and so he disseised A,; and, of necessity, there must be á disseisin of the freehold laid,” The genera! position of Lord Holt is warranted by all the cases, that- the- indictment -must set forth a seisin, Or possession, within thé purview of the statute. <" The party must be shown to be dispossessed, of a freehold, ordo be disseised of a term of years, .yet to come and unexpired. Tenants at. will, of sufferance, are not protected •by the statute, and yet, if it were not essential to allege the estate, and bring it within the reach of the statute, tenants of-that description might avail themselves of -the remedy afforded by the statute, contrary to its plain intendment. It is unnecessary • to cite further cases from English reports. The point has been. decided in this court repeatedly. (Shaw ads. The People, 1 Caines, 125 ., and The People v. King, 2 Caines., 98.) In .the last casé, the late Chief Justice mentions, also,- the case of Beebe ■ ads. The People , not reported.

As to the second point, the case of The People v. Leonard, (11 Johns. Rep. 509.,) decides, that the right and title of the defendant cannot be gone into ; that the statute was; made to prevent persons from doing themselves right by force. As it respects the relator’s title, I do not mean to.be understood, that be is to give precise technical proof, that, he lia.s a- seisin of a *344 freehold, ora term for years"; any evidence, from which eithef Qf tjjggg. estates may be inferred, would be sufficient, Hut, upon the traverse, he must show every material allegation in the iridictmeñt to be true ; and the estate, we have seen, is material, andit,necessarily must be‘.proved. Whatever must be proved, may be disproved, and it follows, naturally, that, though the defehdant shall hot justify the force, by showing a title in himself, derived from an independent source, or even from the relator himself, he may Controvert the facts by which the relator attempts to make out his estate,, and may show that lie has riot such an estáte as1 would enable him' to riiaintain the prosecution. It was. urged, on the argument, that it' appearing: thát Merrick had purchased the preinises, ■ upofi &;fi. fa. against Brinkerkoff^ he had: a right to enter under, that purchase,• aridvtah:e possession. Had the premises been-vacant, I agree that he might have entered, without any danger'from the. statute;; but they were not vacant; and, notwithstanding what fell from Mr. Justice Livingston, in MMougall v. Siicker,:(1 Johns. Rep. 43.,) I am decidedly of. the opinion that the entry was unlawful. .

Tidcl says, speaking of the elégit, (vol. 2. p. 941.,)' it was formerly usual for the sheriff to deliver actual possession of a moiety of the lands, but that he now only delivers legal possession, and, in order to obtain actual possession,, the plaintiff must proceed by ejectment; and he states the practice-to be the samp upon an extent. (2 Tidd's Pr. 950.) ' Our practice is,. not. for the sheriffi to deliver possession ; he has no authority for. doing so ; he' is commanded merely to sell; and the purchaser has .Aó inore right to éntér after his purchase than he has tó ente? •upon any other lands in the actual possession of another, and :tb-which-he. has’title.,; ' .

Indictment quáshédi