Forcible Entry Or Detainer

A forcible entry or detainer consists in violently taking or keeping possession of lands or tenements, by means of threats, force, or arms, and without authority of law. Comyn, Dig.; Gabbett, Crim. Law; 52 Barb. (N. Y.) 198; 4 Cush. (Mass.) 141. Though generally referred to in the conjunctive, forcible entry and forcible detainer are distinct acts. 31 Cal. 122. To authorize either a criminal prosecution or an action of forcible entry and detainer at common law, both entry and detainer must be forcible (93 Ind. 211); but a forcible entry will relate back to the entry, if that was unlawful, though peaceable; otherwise, if the entry was lawful (45 CaL 597). In Modern Usage. The possessory action of forcible entry and detainer has been extended by statute to certain cases of constructive force, as where a tenant holds over after his term.

A forcible entry or detainer consists in violently taking or keeping possession of lands or tenements, by means of threats, force, or arms, and without authoi’ity of law. Comyns, Dig.; Woodf. Landl. & Ten. 973; 2 Blsh. Cr. L. 489. Such an entry as is made with strong hand, with unusual weapons, and unusual number of servants or attendants, or with menace of life or limb; an entry which only amounts in law to a trespass Is not within statutes relating thereto. Smith v. Reeder, 21 Or. 541, 28 Pac. 890, 15 L. R. A. 172. To make an entry forcible, there must be such acts of violence, or such threats, menaces, or gestures, as may give reason to apprehend personal injury or danger in standing in defence of the possession. But the force made use of must be more than is implied in any mere trespass; 8 Term 357; Com. V. Dudley, 10 Mass. 409; Pennsylvania v. Robison, 1 Add. (Pa.) 14; Tayl. Landl. & Ten. § 786. Dri\dng the tenant from the premises by deadly weapons and an array of numbers is a forcible entry; State v. Smith, 100 N. 0. 466, 6 S. E. 84. But it is sufflcient that it was made against the will of the Individual when in peaceable possession, without actual force; Oakes v. Aldridge, 46 Mo. App. 11; Meriwether v. Howe, 48 Mo. App. 148; Wylie V. Waddell, 52 Mo. App. 226. Proceedings in case of a forcible entry or detainer are regulated by the statutes of the several states, and relate to a restitution of the property, if the Individual who complains has been dispossessed, as well as to the punishment of the offender for a breach 'of the public peace. And the plea of ownership is no Justification for the party complained of; for no man may enter even upon his own lands in any other than a peaceable manner. Nor will he be excused if he entered to make a distress or to enforce a lawful claim, nor if possession was ultimately obtained by en- C. 324.; 8 Term 361; but, contra. It has been held, ^at an intruder In quiet possession of land may be forcibly expelled by the owner; Smith V. Reeder, 21 Or. 641, 28 Pac. 890, 15 It. R. A. 172; Canavan v. Gray, 64 Cal. 6, 27 Pac. 788. If the owner is guilty of a breach and trespass on the person of the intruder in taking possession of his land, he is liable for that, but his possession is lawful, and an action of trespass quare clausum is not maintainable against him; Over deer v. I.ewis, 1 W. & S. (Pa.) 90, 37 Am. Dec. 440; Rich V. Keyser, 64 Pa. 86. This follows the English doctrine as expressed by Parke, B., that, where a breach of the peace has been committed by a freeholder who, in order to get possession of his land, assaults a person wrongfully holding possession of it, although the freeholder may be responsible to the public for a forcible entry, he is not liable to the other party; and in an action brought against him, it is a sufficient justification that the tenant was in possession against the will of the owner; 14 M. & W. 437. See 4 Am. Law Rev. 429. A lessee never in possession cannot maintain unlawful detainer against the lessor, either at common law or statute; Long V. Noe, 49 Mo. App. 19. A change of possession pending a suit for forcible entry and detainer does not affect the right of recovery; Daggltt V. Mensch, 141 111. 393, 31 N. E. 153. Upon an Indictment for this offence at common law, the entry must appear to have been accompanied by a public breach of the peace; and, upon a conviction for either a forcible entry or detainer, the court will award restitution of the premises in the same manner as a judge In a civil court, under a statutory proceeding. Is authorized to do upon a verdict rendered before him; 1 Ld. Raym. 612; 8 Term 360; Cro. Jac. 151; Al. 50. Neither title nor right of possession Is at issue, or can be made an issue, in an action of forcible entry and detainer; Sheehy v. Flaherty, 8 Mont. 365, 20 Pac. ^7.

Violently or session or keeping lands or tenements. Also, the civil action therefor.