Warren v. Cochran

30 N.H. 379

• Court: Superior Court of New Hampshire
• Decided: December 15, 1854
• Status: Published

Opinion

Woods, J.

Warren was the owner of the land, and he must, therefore, be regarded as in the rightful possession at the time of the entry by the defendant. The title draws after it the right of possession, and, in fact, gives a sufficient constructive possession to enable the owner to maintain trespass. An actual entry, under a deed or grant of land, is not necessary, in this State, to enable the grantee to maintain trespass quare clausum fregit. Concord v. McIntire, 6 N. H. Rep. 527; Chandler v. Walker, 1 Foster’s Rep. 282. See also Vanbrant v. Schaick, 11 Johns. 285; Wickham v. Freeman, 12 Johns. 184; Bush v. Brady, 4 Day 306. Also the remarks of Duncan, J., 3 Serg. & Rawle 513, 514. And there can be no pretence that here was such a disseizin of the plaintiff as would, at common law, defeat his right of action, without a re-entry, for he is not shown to have been actually put out of .possession. The defendant might have been treated as a disseizor or trespasser, at the election of the plaintiff. Wendell v. Blanchard, 2 N. H. Rep. 458; Towle v. Ayer, 8 N. H. Rep. 59.

The plaintiff was no party to the process and judgment of Cochran v. Carr, and, of course, his rights are not affected thereby, or by any entry under and in virtue of them. 2 Phil. Ev. 4; 1 Greenl. Ev. 562, § 522; Dutchess of Kingston's Case, 20 How. State Trials 578; Lawrence v. Haynes, 5 N. H. Rep. 33; Thresher v. Haines, 2 N. H. Rep. 443; Burrill v. West, 2 N. H. Rep. 192.

The defendant acquired, by his judgment, no right to enter upon the land, and no greater or other rights than he had without the judgment. Shepard v. Pratt, 15 Pick. 32. His right to enter upon the premises as against the plaintiff, was in no manner increased by reason of the judgment and writ of possession. They gave him a good right as against Carr, but not as against the plaintiff. Carr appears to be a mere wrong-doer. He is not shown to have any pretence of title or right of possession. As against the plaintiff he was a mere trespasser, and the entry of the plaintiff gave his possession no higher character.

The extent of an execution upon the land of a stranger will not oust him, but the extent and every act done under it, is a trespass. Shepard v. Pratt, 15 Pick. 32, before cited.

And we can discover no principle upon which the writ of possession, in this case, should confer any greater right upon the party in whose favor it was issued than would have resulted from the levy of an execution between the same parties.

Judgment on the verdict.