Sweeney v. Dahl

34 A.2d 673, 140 Me. 133, 151 A.L.R. 356, 1943 Me. LEXIS 25

• Court: Supreme Judicial Court of Maine
• Decided: November 10, 1943
• Status: Published

Opinions

Chapman, J.

The case comes to this Court upon exceptions filed to rulings and final decision of the presiding Justice of the Superior Court. The action of forcible entry and detainer originated in the South Portland Municipal Court and went to the Superior Court upon appeal, where it was submitted to the presiding Justice, sitting without a jury, on an agreed statement of facts with right of exceptions reserved.

The facts essential to the consideration of the case, as they appear in the agreed statement, made a part of the bill of exceptions, are as follows:

The defendant, as a tenant at will, occupied premises consisting of house and garage. The owner leased the premises to the plaintiff, who brought action of forcible entry and detainer for possession of the premises against the tenant, without notice of the lease to the tenant, to enable him to vacate the premises before suit was brought.

It does not appear from the agreed statement that the defendant had knowledge of the lease. The plaintiff claimed that the tenant, by reason of the termination of the tenancy alone, became subject to an action of forcible entry and detainer for the possession of the premises. The Justice ruled that the lease terminated the tenancy and that notice to the tenant of the lease was not necessary for the prosecution of the action and gave judgment to the plaintiff for possession of the premises and for damages to be assessed by the Clerk of Courts.

The essential allegation in the plaintiff’s declaration is that the defendant—

“disseized the said Plaintiff of her lands and tenements” . . . “and then and there and still does forcibly and unlawfully refuse to quit the same.”

Authority for the complaint as set forth is found in the first clause of Sec. 1, Chap. 108 of the Revised Statutes of 1930, which reads as follows:

“Sec. 1. Forcible Entry and Detainer, against whom maintained. Process of forcible entry and detainer may be maintained against a disseizor who has not acquired any claim by possession and improvement;”

So much of the clause as refers to claim by possession and improvement does not affect the consideration of the instant case. 'File second clause in the section provides that the action may be maintained—

“against a tenant holding under a written lease or contract, or person holding under such tenant, at the expiration or forfeiture of the term, without notice, if commenced within seven days from the expiration or forfeiture of the term;”

And a third clause provides that the action may be maintained—

“against a tenant at will, whose tenancy has been terminated as provided in the following section.”

The following section provides that —

“Tenancies at will may be determined by either party, by thirty days’ notice in writing for that purpose, given to the other party, and not otherwise save by mutual consent, ....”

It is to be noted that Sec. 1, as worded, makes the process available in two classes of cases: The one applying exclusively to situations existing between landloards and tenants and the other to a withholding of possession by a disseizor, irrespective of whether the disseizor’s possession originated in a tenancy or otherwise.

The first clause under which the action was brought makes no mention of tenancy, and if it is within that clause it is not necessary that the person against whom the action is brought be a tenant. Baker v. Cooper, 57 Me., 388, 390. The essential element is that he be a disseizor. Lacking this element the clause does not apply. Holding Co. v. Bangor Veritas, 131 Me., 421, 163 A., 655. The clause under which the action was brought is therefore independent of the two clauses following and takes no meaning from them. Woodman v. Ranger, 30 Me., 180; Eveleth v. Gill, 97 Me., 315, 54 A., 756. We, however refer to the three clauses inasmuch as we believe there has been a confusion by reason of the grouping of the two classes of cases in one section, and it is necessary to distinguish in adjudicated cases when the Court is referring to the statutory notice necessary to terminate a tenancy by will of the parties, as provided in the last clause of the section, and when it is referring to a notice to the tenant after the termination of tenancy by operation of law, a disregard of which notice will constitute him a disseizor and make the action of forcible entry and detainer available against him. A termination of a tenancy at will by alienation of the premises is by operation of law and not by will of the parties. Howard v. Merriam, 5 Cush., 562, 574; Seavey v. Cloudman, 90 Me., 536,38 A., 540.

The substance of the accusation in the declaration is that the defendant was a disseizor. It is made in the words of the statute and the question to be decided is not merely whether the tenancy was terminated, but whether the tenant, by reason of the termination of his tenancy by the act of his landlord, was made a disseizor and subject to the action without notice of the same whereby he would have been able to vacate the premises before suit was brought.

The plaintiff must bring his case within the statute and his allegation. Eveleth v. Gill, supra. The Court said:

“It follows under the general law of pleading that the plaintiff in such a process should allege in his declaration the facts declared by the statute to be an occasion where the process may be used.”

So far as the question is raised as to the effectiveness of the lease in terminating the tenancy of the defendant, the Justice was correct in his ruling. A deed or lease from the owner to a third party will terminate a tenancy at will, and the Court will not inquire as to the purpose of the conveyance. Ranoourt v. Nichols, 139 Me., 339,31 A. (2d), 410, and cases therein cited. But this is not to say that the conveyance by the owner makes a disseizor of the tenant.

Were the facts set forth in the agreed statement, viz., that the owner alienated the premises without notice of the same to the tenant and without evidence of knowledge of the same on the part of the tenant, sufficient to maintain her allegation that the defendant disseized her? Another way of asking the question is: Did the tenant become a disseizor by the act of another person, over which act he had no control and of which he had no knowledge?

If a term used in the statute has a legal meaning it is presumed that the Legislature attached that meaning to the same. Endlich on the Interpretation of Statutes, Sec. 74; Merchants Bank v. Cook, 4 Pick., 405,411.

The term “disseizor” is strictly a legal term and carries a wrongful import. Lord Coke said:

“A disseizor is where one enters intending to usurp the possession and to oust another of his freehold.” ... and, “Or if a man interveneth into lands of his own wrong and take the profits his words to hold it at the will of the owner cannot qualify his wrong, but he is a disseizor.” Co. Lit., 277.

Mr. Kent said:

“Every disseizin is a trespass, but every trespass is not a disseizin. A manifest intention to oust the real owner must clearly appear, in order to raise an act which may be only a trespass to the bad eminence of disseizin.” 4 Kent, 11th ed., 487.

18 C. J., 1284, says:

‘The clearest and most comprehensive definition of a disseizin perhaps, is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim, of right, either under an openly avowed claim, or under a constructive claim arising from the acts and circumstances attending the appropriation to hold the land against him who was seized.”

In William v. Thomas, 12 East, 141, disseizin was defined as —

“the putting out of a man out of seisin, and ever implieth a wrong.”

Our own Court said in Stetson v. Veazie, 11 Me., 408,410: “for a disseizin is of itself a wrong.”

That the term “disseizor,” as contained in the statute, is to be given its common law meaning, is stated in Reed v. Elwell, 46 Me., 270, 279, where the Court said:

“The disseizin contemplated by this statute, is not a disseizin which exists only at the election of a party, for the purpose of trying his title, but a disseizin at common law.”

And again in Dyer v. Chick, 52 Me., 350, 354, the Court adopted the common law meaning when it said:

“Disseizin is a wrongful putting out of him that is seized of a freehold. Co. Lit., 277.”

The clause of the statute now under consideration existed in the same terms, at the respective dates of these two cases, except that the present statute says,—

“Process of forcible entry and detainer may be maintained ....”,

whereas the earlier statute said,—

“Process of forcible entry and detainer may be commenced . .. ”.

That the Legislature intended to attach to the term “disseizor” the meaning above indicated is in harmony with the designation of the form of the action to be used. It is true that the Legislature has defined the use of the action of forcible entry and detainer and likewise has defined the procedure, but it is to be presumed that it had in mind the nature and general scope of the action and intended to give it such import as is not taken away by the terms of the statute. Endlich on the Interpretation of Statutes, Sec. 127. It no doubt selected this form of action, with the changes made in its procedure, as an appropriate remedy against one who wrongfully withholds possession from the one rightfully entitled to the same.

The action of forcible entry and detainer was originally a quasi criminal process, and, while it is now civil in its aspect, it has retained its highly tortious character. In an action of tort a tort must be alleged and proved, and to constitute a tort there must be a wrong done. 62 C. J., Torts, Sec. 17; Heywood v. Tillson, 75 Me., 225,236,237,46 Am. Rep. 373.

In Eveleth v. Gill, supra, Judge Emery spoke as follows:

“The summary process of forcible entry and detainer at common law was a criminal, or quasi criminal, process and was only allowed where the entry and detainer were with force, the strong hand. The legislature of this state has devised a process of the same name, but now purely civil in form and nature, for the cases specified in the statute. It follows under the general law of pleading that the plaintiff in such a process should allege in his declaration the facts declared by the statute to be an occasion where the process xnay be used. Thus it was said by this court in Treat v. Bent, 51 Maine, 478, ‘This process of forcible entry and detainer is one created and regulated by the statutes, and in order to be maintained, must come clearly within their provisions.’ ”

Gilbert v. Gerrity, 108 Me., 258, 80 A., 704.

Karahalies v. Dukais, 108 Me., 527,81 A., 1011.

The Legislative intent in a statute must primarily be ascertained from the language thereof and not from conjecture. In other words, the Court will first seek to find the Legislative intention from words, phrases and sentences which make up the subject matter of the statute. If the meaning of the language is plain the Court will look no further; it is interpreted to mean exactly what it says. Crawford’s Statutory Construction, Sec. 164.

Estabrook v. Steward Read Co., 129 Me., 178,151 A., 141.

Adams Express Co. v. Kentucky, 238 U. S., 190,199, 35 ,59 L. Ed., 1267, L. R. A. 1916 C, 273, Ann. Cas. 1915D, 1167.

In view of the generally accepted meaning of the language of the statute we would feel justified in interpreting the clause under which the action is brought without further consideration, except that we believe there has been, in some quarters, a mis-interpretation of some of the adjudicated cases.

In our own state and in the state of Massachusetts, which has had a statute which, although differently worded, is of the same general purpose as the Maine Statute, the Courts have several times held that a conveyance of property will terminate a tenancy and have held that, in such case, the notice which is required to terminate a tenancy by the will of the landlord is not necessary before bringing forcible entry and detainer against the tenant. And in some of the cases the language of the Court has been such that it might appear that the Court had held that no notice was necessary to the tenant; but in each case a careful examination will show that the Court was referring only to the statutory notice necessary to terminate the tenancy by will of the parties.

In the case of Seavey v. Cloudman, supra, which was an action of trespass quare clausum by the tenant against a representative of a grantee of the landlord for entry after the conveyance, the Court held that the tenancy was terminated by the conveyance and that notice was not necessary to effect the termination; but the Court stated in its opinion that the tenant had been given notice of the conveyance and notified to vacate, and that the issue before the Court was whether the tenant was entitled to the notice provided for in the statute to the effect that —

“Tenancies at will may be .determined by either party, by thirty days’ notice in writing for that purpose, given to the other party, and not otherwise save by mutual consent,” ....

The decision was that the tenant was not entitled to that notice. It is not to be interpreted as holding that knowledge of the conveyance need not be brought home to the tenant before he could be treated as a disseizor. The opinion by Judge Savage cited the case of Howard v. Merriam, supra, and adopted the reasoning and the language of Chief Justice Shaw, who said:

“When therefore it is thus determined by operation of law it is determined by its own limitation without notice.”

But Judge Shaw also said in his opinion:

“the estate at will was determined by act of law; and the defendant then became a tenant at sufferance only. By the notice of that lease for years, and the entry of the lessee for years, and demand of possession hy him, the defendant’s right of possession ceased;” (Italics ours).

The case of Karahalies v. Dukais, supra, was an action of forcible entry and detainer in which the Court held that the plaintiff had not stated a case under the statute, quoting from Treat v. Bent:

“This process of forcible entry and detainer is one created and regulated by the statutes, and, in order to be maintained, must come clearly within their provisions.”

The question now before us, therefore, was not in issue, but the Court, in that part of its opinion wherein it said that forcible entry and detainer is the proper form of action against a tenant whose tenancy has been terminated by alienation by the landlord, might seem to indicate that the action could be brought without notice to the tenant; but the Court had prefaced this statement by saying in its outline of the case that a written notice of the alienation and demand for possession had been given to the tenant who had refused to vacate.

The case of Bennett v. Casavant, 129 Me., 123,150 A., 319, was an action of forcible entry and detainer, as the opinion states, against a “disseizor.” The opinion was brief and it held that the conveyance by the landlord terminated the tenancy at will. But it appears from the opinion that previous to bringing the action of forcible entry and detainer, not only did the tenant have actual knowledge of the lease, but had brought an action against the owner and the lessee to prevent the lease from taking effect. Thus, in all three cases referred to, the tenant had actual notice of the conveyance and it cannot be said that the Court ruled that forcible entry and detainer could be brought without knowledge being brought to him of the termination of his tenancy.

“Every opinion must be read in the light of the facts then presented.” Swan v. Justices of the Superior Court, 222 Mass., 542, 545, 111 N. E., 386, 388.

In the English case of Lewis, et als v. Baird, 13 East, 210 (1808), in which a conveyance was made by the owner, Lord Ellenborough said:

“After the lessor had put the defendant into possession, he could not, without a demand of the possession again and a refusal by the defendant, or some wrongful act by him to determine his lawful possession, treat the defendant as a wrong-doer and trespasser, as he assumes to do by his declaration in ejectment.”

In the early case of Rising, et al. v. Stannard, 17 Mass., 282 (1821), the Court held that a tenant whose tenancy had been terminated by alienation of the premises by the owner, without notice of the alienation, was not a trespasser. It said at p. 287:

“It may be fairly inferred from these principles, that when an estate at will is determined by an event not within the knowledge of the tenant, his holding over will not amount to a trespass. Suppose, for example, that the estate at will is determined by the death of the lessor in a distant Country, or by his conveyance of the land, of which the tenant can by no possibility have notice at the time of such death or conveyance; it would hardly be contended that the tenant, by holding over, becomes a trespasser. For as the law allows him a reasonable time to remove, after notice given him to quit, he cannot be bound to quit without notice.”

And the Court quoted Blackstone:

“If a man makes a lease at will and dies, the estate at will is thereby determined. But if the tenant continueth possession, he is a tenant at sufferance. This estate may be destroyed, whenever the true owner shall make an actual entry on the lands, and oust the tenant; for before entry he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger; and the reason is because the tenant being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful; unless the owner of the land, by some public and avowed act, such as entry is, will declare his continuance to be tortious.”

Several of the later Massachusetts cases, like the Maine cases that we have cited, might be mis-interpreted.

In Kinsley v. Ames, 2 Met., 29, the owner of the property made conveyance and the grantee notified the tenant to vacate. Upon entry thereafter the grantee was forcibly resisted and the Court held that the summary process could be maintained. The opinion by Chief Justice Shaw stated that the defendant was not entitled to notice, but it is apparent that the notice referred to in the opinion was the statutory notice to terminate a tenancy by will of the parties, as the issue raised was upon the claim of the defendant that he was entitled to three months’ notice as provided in the statute for the termination of a tenancy by will of the parties.

In the case of Benedict, et al v. Morse, 10 Met., 223, conveyance was made by the owner and a notice of the conveyance given to the tenant. The Court in this case stated that no notice to the tenant was necessary, but it stated in the opinion that the issue was as to—

“whether the defendant was tenant at will of the estate occupied by him, and, as such, entitled to three months’ notice to quit, before this process could be legally commenced.”

The Court cited cases in support of its decision and in each such case stated as a part of the facts that notice of the conveyance had been given to the tenant previous to the bringing of the action.

In the case of Howard v.Merriam, supra, Chief Justice Shaw reviewed many cases and he stated that a tenancy at will is terminated by a conveyance by the owner, but the case shows that notice in writing had been given to the tenant of the conveyance; and Judge Shaw referred to the notice and the demand for possession as an element in defeating the right of possession by the Tenant. That the finding was to this effect is cited in 28 L. R.A., 99n.

All question, however, as to what the Massachusetts Court intended was settled by Chief Justice Shaw in his opinion in Furlong v. Leary, 8 Cush., 409, in which case he passed directly upon the question that we have before us and said:

“Rut it is found as a fact, in the present case, that the defendant had no notice of the lease of Kemp ton to the plaintiff, until he was served with process under this complaint; we think, therefore, that the complaint was prematurely brought. It is a rule, founded on the plainest principles of equity and fair dealing, that where a right of action depends on a fact peculiarly within the knowledge of the plaintiff, and which the other party- may not be presumed to know, and does not in fact know, the plaintiff must give the defendant notice of such fact. No form of notice being prescribed by positive law, the form of notice is immaterial, but the fact is essential.”

This finding was cited in L. R. A. 1918,58n. The rule thus laid down has been followed consistently by the Massachusetts Courts.

McFarland, et als v. Chase, 7 Gray, 462.

Mizner v. Munroe, 10 Gray, 290.

Pratt v. Farrar, 10 Allen, 520.

Decker v. McManus, 101 Mass., 63.

Lawton v. Savage, 136 Mass., 111.

Dixon v. Smith, 181 Mass., 218,63 N. E., 419.

In the latter case the Court quoted the language of Judge Shaw in Furlong v. Leary, supra.

In the case of Sullivan, et ux. v. Carberry, 67 Me., 531, 532, Chief Justice Appleton, in commenting upon the rights of the plaintiffs who maintained, as tenants at will, a building upon the land of another, said:

“Not knowing when their rights would terminate, they would have a reasonable time after such termination in which to remove any fixtures they might have erected upon the land.”

The principle upon which the statement is founded is not directly in point with the issue that we have before us, but the principle would not be consistent with a rule that a tenant whose tenancy has been terminated without his knowledge will not be entitled to notice and reasonable time in which to vacate before-being declared a disseizor.

The situation of the tenant is analagous to that of a bailee in possession of personal property. If goods have rightfully come into his possession neither replevin nor trover may be maintained against him without demand and refusal or some act upon his part antagonistic to the rights of the owner.

Eveleth v. Blossom, 54 Me., 447, 92 Am. Dec., 555; Acceptance Corp. v. Littlefield, Crockett Co., 128 Me., 389, 147 A., 868; Galvin v. Bacon, 11 Me., 28, 25 Am. Dec., 258; Dean v. Cushman, 95 Me., 454,50 A., 85,55 L. R. A., 959, 85 Am. St. Rep., 425.

If the owner of goods delivers the same to a bailee for hire (rents them) and afterward gives a bill of sale to a third party, the grantee is subject to this rule. We know of no principle upon which it can be said that the bailee is entitled to more consideration than the tenant.

If the action can be maintained against the tenant without notice, he can be made to answer to a judgment carrying costs and execution running against the body. Sec. 45, Chap. 124, R. S., and this without opportunity of avoiding such liability. We do not think that such is the law.

The defendant was entitled to notice of the lease before action was brought.

It is not necessary to pass upon other questions raised in the bill of exceptions.

Exceptions Sustained.