Lecatt v. Stewart

2 Stew. 474

Opinion

By JUDGE TAYLOR.

It is to reverse the decision of the Circuit Court, that the appeal is brought to this Court.

The first error .assigned, is, that the plaint does not state that the said Littleton “ entered” the said premises.

The 7th section of the “act concerning forcible entries and detainers,” prescribes the manner in which the.complaint shall be made, and what it shall .contain, and declares that it shall be in writing, “ specifying the lands, tenements, or other possessions, so forcibly , entered upon and detained, or forcibly or unlawfully detained,.by whom and when done, and the estate therein,” &c. The plaint in this instance states, that on the. 13th of November, 1827, the said Littleton Lecatt, “ with force and arms and strong hand, did, then and there forcibly detain” the premises which in the plaint are described, and which the complainant had previously therein alleged himself to have been in the possession of. As the injury alleged was a “ forcible detainer,” and not a “ forcible entry,” it is believed that this assignment contains no cause for a reversal.

The second assignment is, “that the plaint does not state that the said Charles A- Stewart was seized in fee, and being so seized, that the said Littleton “ entered,” &c. The statute requires that the complainant shall state his “ estate” in the lands, &c. In this instance the plaint does state that he has “afreehold in fee simple.” This is all that it is necessary for it to contain in this particular.

The third and fourth assignments relate to the absence of all evidence of force before the justice pf the peace. In this Court it does not appear whether such evidence was introduced or not. In. reasons assigned by the defendant’s counsel for the new trial, which he, moved for before the justice, it is alleged that there was .no evidence of force; but this Court is not authorized to act upon this statement of counsel, for .it is nothing more. In the case pf Ward v. Lewis,

Footnotes

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a it was determined by this Court, that no evidence need appear in the record, except that which is offered, but rejected, and that which is objected to, and yet admitted by the justice. Such evidence as that required by these assignments, may have been introduced and not transcribed upon the record.

The 5th assignment is, that the justice erred “in not granting a new trial of the issue,, when the jury found the defendant guilty, in the total .absence of all evidence of force or menaces.” It has often been decided by this Court that it will not revise the decisions of inferior tribu-? nals, on motions for new trials. These motions being addressed to the sound discretion of the Court, must abide its determination. But were we willing to make this case an exception, which we are not, we have no data upon which to determine that the decision of the magistrate was in that instance incorrect. .

The 6th assignment is, that the justice erred “ in admitting the lease to be read in evidence to prove possession without the aid of other evidence of that fact.” It appears from the record that the complainant offered in evidence a paper, termed in the record a lease, executed by-Martha J. Livingston, in which it is recited that the complainant had rented to the said Martha the premises in dispute, for the term of one year from the date thereof, which is the 19th October, 1826, and she promises to pay twenty-five dollars rent therefor, and “ return the premises in'as good order as received” by her. The introduction of this lease was objected to, but admitted by the justice. This paper must have been offered as testimony conducing to prove that Stewart had been in possession of the premises by his tenant; for it will be observed that the proceedings in this case commenced within a month after the time at which the term of Mrs Livingston expired. If this was all the evidence which was introduced to prove that Stewart had ever been in possession of the premises, it was certainly insufficient to establish that fact; but this is no where stated to be the case. The presumption must be, that other evidence was introduced to prove that Mrs-Livingston had occupied the premises, and the object of reading this paper was, to show that she held that possession as the tenant of Stewart. Bor this purpose it certainly was legally admitted. The possession of the tenant is the possession of the landlord; and as the tenant herself would have been estopped by her own deed from denying this fact, so that deed, when coupled with evidence of her possession during the time specified in it, was admissible in this case to show that such possession was the possession of Stewart.

The 7th assignment is, that the justice erred in “ charging the jury that it was not necessary for the complainant to prove any title in him.” In a proceeding of this kind, the title is not in controversy; it is only necessary to prove that the possession has been intruded upon by the defendant, and it is then for the defendant to shew that he holds that possession in a manner which affords him a defence in this summary proceeding.

The judgment must be affirmed, and in this opinion the Court are unanimous.

1 Stew.Rep page 26.