Is the action of forcible entry and detainer available by one who is entitled to the possession of land but who is not in the actual physical occupancy thereof at the time of a forcible or other unlawful entry on such land by another?
As I understand the majority opinion the question requires a negative answer.
This leads them to say that the statutory form of complaint employing the phrase "lawfully entitled to the possession" is applicable to unlawful detainer by one lawfully entering into possession and holding over, only.
The trouble started with unfortunate language in Romero v. Gonzales, 3 N.M. 5, 1 P. 171, 173, probably only dicta, since the judgment was reversed upon the ground that the bill of exceptions "being silent on the several issues of force, stealth, intimidation, and fraud in the defendant's mode of entry, * * * there was no evidence to sustain the verdict" (in plaintiff's favor).
The unfortunate language of Judge Bristol is: "The main point on which every *Page 133 forcible entry and detainer suit must be maintained, if at all, is the fact that the defendant by the mode of entry or detention has committed a wrong in the nature of a public offense, and the object of the statute is to punish the wrong-doer by a restitution of the premises to the plaintiff without inquiry as to which has the legal right of possession. * * * As already indicated, the main object and purpose of the statute is to prevent persons from disturbing the public peace, or perpetrating gross and willful wrongs, by maintaining by actual force or fraud what they claim as private rights in the possession of land."
This idea has persisted in our decisions cited and quoted by the majority. But as far as I can discover, what Judge Bristol said in Romero v. Gonzales was accepted without re-examination in the light of reason or in the light of amendments to the statute subsequent to the date of that opinion.
I recommend a reading of the abstract of the brief of Catron Thornton appended to the report of Romero v. Gonzales.
Because of the importance of what I think was a correct contention, I quote more fully from that brief:
"The Statute of New Mexico goes farther than the statute of most states; it not only gives the right to bring this action when the entry was with force but includes cases where the entry is by fraud or stealth. The evident object of adding these two clauses was to include all kinds of unlawful entry.
"What was intended as an entry by stealth, could only mean an entry in the absence of the owner or person in possession. Mr. Webster defines stealth to mean "means unperceived employed to gain an object, way or manner not perceived." This is what the law makers intended. They declared that a forcible entry should be unlawful, and that an entry by fraud should be unlawful, and further that it should be unlawful for any person to sit by and watch until the party in possession shall be called away from his premises and then quietly in his absence take the possession of his farm. Such an entry is just as wrongful and injurious to the owner as though it had been by force or fraud. The law never intended to permit a person to do this and thus bring on a private broil or force the person who has been in possession to a long suit in ejectment to recover his possession.
"The facts in the case were sufficient to be left to the jury to say whether the entry was by stealth or fraud and their decision is final."
I think that Messrs. Catron and Thornton as attorneys, and Chief Justice Prince, the district judge trying the case, were eminently correct in their view that the practical and useful remedy of forcible entry and detainer was not intended by the legislature which enacted it in 1876 to be limited to cases where the facts showed a forcible *Page 134 entry amounting to a breach of the peace, which is a public offense.
The vice in the opinion of Justice Bristol, concurred in by Justice Bell, was in giving too narrow a definition ofpossession of the plaintiff and also in overlooking the fact that the remedy applied to cases where the plaintiff was not in the actual physical possession of the property at the time of the entry of the defendant, and in overlooking the fact that the entry of the defendant might be by fraud or stealth as well as being forcible.
In Phelps v. Randolph, 147 Ill. 335, 35 N.E. 243, 245, the court said: "No breach of the peace was committed, but the entry was a forcible one, one which the statute forbids. Where a person is in the possession of a tract of land, cultivating it, or using it for pasture, but not residing upon it, he is entitled to the same protection as against an intruder as he would be if he resided upon the land. His absence from the land is not a license or invitation for any one to enter, and an entry in the absence of the party in possession, against his will, may be regarded as forcible, and in violation of the statute."
It will be noticed that Bristol, J., in Romero v. Gonzales cited Dickinson v. Maguire, 9 Cal. 47.
That case was decided in January 1858, and I think it was more helpful to the appellee in Romero v. Gonzales than to appellant, and is worth quoting. The court said: "The first section of the statute of this state, Wood's Digest, 467 prohibits — 1. An unlawful entry into lands, tenements, or other possessions; And 2, A forcible entry when the right of entry exists. The same section then provides, in reference to both these cases, that `if any person do the contrary, and be thereof duly convicted, he shall be punished by fine.' The second and third sections also clearly recognize the distinction between a forcible and unlawful entry."
After further discussion of the statute the court went on to say:
"Putting these different provisions together, and looking to the spirit and scope of the act, the action may be maintained in the following cases:
"1. When the entry is forcible.
"2. When the entry is simply unlawful and the detainer forcible.
"3. When the entry was lawful and the holding-over forcible. * * *
"As to what shall constitute a forcible detainer, it may be difficult to define in language so exact and certain as to exclude all room for reasonable doubt. The circumstances of different cases are so various as to make this impossible. But it may be stated in general terms that there must be something of personal violence, either threatened or actual. If, when the possession of the premises is demanded of the party, he, by word or act, look or gesture, gives reasonable ground to apprehend the use of force to prevent the rightful claimant from obtaining peaceable possession, this would be sufficient. It is not necessary *Page 135 for the claimant to wait until actual violence is resorted to.
"It would seem that, in most cases, it would be no difficult matter before the commencement of the suit, to put the question as to whether the detainer be forcible or not, in a shape susceptible of easy proof. A clear and distinct demand of the possession, accompanied with an offer to take peaceable possession, by the claimant, would put the party making the unlawful entry at once in the wrong, if he refused peaceably to yield up the possession. There should be something to show that the claimant cannot obtain peaceable and easy redress by his own act, in such a case, before he can resort to this severe remedy. A party may, in some instances, enter into premises without color of title, and with no design to occupy adversely, and be willing to give up the possession when demanded. If the party making an unlawful entry, will peaceably quit the premises when demanded, he will be only responsible for a trespass, and not for a forcible detainer."
The case seems to have been decided, or at least controlled by the state of the pleadings. The court said: "There is, in the complaint in this case, no allegation of a forcible entry, or of a forcible detainer."
It is not unlikely that our territorial legislature of 1875-76 examined the California and Missouri and other statutes.
It seems to me, just as Messrs. Catron and Thornton argued, that our legislature in 1876 by saying that the remedy was as much available as against one who entered the lands of another by fraud or stealth when the owner or person entitled to possession of same was absent therefrom as it would be for one who was in actual physical possession of the premises and was ousted therefrom by force, accomplished the same thing achieved in California.
I have gone back to the California statute which I find in the California Code of Civil Procedure, published in 1872, and which was probably under consideration in the Dickinson v. Maguire case, cited by Judge Bristol, and which is as follows (sections 1159-1161):
"Forcible entry defined. Every person is guilty of a forcible entry who either:
"1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or,
"2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.
"Forcible detainer defined. Every person is guilty of a forcible detainer who either:
"1. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or,
"2. Who, in the nighttime, or during the absence of the occupant of any lands, unlawfully enters upon real property, and *Page 136 who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant.
"The occupant of real property, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands.
"Unlawful detainer defined. A tenant of real property, for a term less than life, is guilty of an unlawful detainer:
"1. Where he continues in possession of the property, or any part thereof, after the expiration of his term, without the permission of the landlord; but in case of a tenancy at will or sufferance, it must first be terminated by notice, as prescribed in The Civil Code;
"2. Where he continues in possession, after a neglect or failure to perform the conditions or covenants of the lease or agreement under which the property is held, and three days notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him;
"3. Where he continues in possession, without such permission, after default in the payment of rent pursuant to the agreement under which the property is held, and three days notice, in writing, requiring payment of the rent or possession of the property, shall have been served upon him."
I think our legislature of 1875-76, by the language employed, accomplished the same thing that was contemplated by the California statute last above quoted. That is, the remedy was available against:
1. Persons guilty of forcible entry.
2. Against persons guilty of forcible detainer.
3. Against persons guilty of unlawful detainer.
The reader should refer to Sec. 38-901, Comp. 1941. As the compiler suggests, in the paragraph "First" of the section, a period should follow the words "detains the same". That is the way the act stood prior to the amendment of 1889.
So, prior to the amendment it is my view that the statute in paragraph "First" contemplated forcible entry as where a defendant entered by means of force or intimidation, which would include threats, menaces of any sort and, secondly, forcible detainer where a defendant entered without force or intimidation but by fraud or stealth and detains the same, and that the paragraphs marked "Second" and "Third", which were in the original enactment, contemplate an unlawful detainer as distinguished from a forcible detainer, since paragraphs "Second" and "Third" contemplate that the entry was lawful but the defendant was unlawfully holding over.
It will be noticed in the article in 22 Am. Jur. on Forcible Entry and Detainer, commencing at page 905, that in Sec. 28 the text writer says: "In some jurisdictions, however, the courts have widened the conception of forcible entry to include *Page 137 the obtaining of land by fraud, stealth, or other unlawful means, as well as by actual violence."
That is exactly what I think the legislature of 1875-76 did. That is to say, they widened the conception of forcible entry when they included the words "fraud or stealth." The Am.Jur. text writer goes on to say: "Since the proceeding for forcible entry and detainer is purely statutory, it follows that a comprehensive view of what is regarded by the courts as constituting a forcible entry can only be obtained by considering the statutes of the several states with reference to which the decisions have been pronounced. Some of these statutes have entirely perverted the original meaning of the word "force" and define as "forcible" entries that are obviously peaceable. Many cases are, accordingly, to be found in which forcible entry and detainer proceedings are grounded on acts that amount only to ordinary trespasses upon real property. In some jurisdictions, forcible entry is defined by statute as including any entry, however quiet, against the will, or merely without the consent of, the party in possession; and the proceeding can be maintained by the person in possession against one who enters upon even vacant or unoccupied lands without right or title. To constitute forcible entry and detainer under such statutes, therefore, it is not essential that the entry he made with a strong hand, or be accompanied with actual force or violence, either against persons or property. The word "force", as used therein, means no more than the term "vi et armis" at common law — that is, with either actual or implied force."
I think our legislature, by the amendment of 1889, which said: "It shall be sufficient to prove that defendant entered upon and occupied the premises against the will or consent of the owner or owners thereof; and that after having been notified by the owner, his agent or attorney to vacate the same, he refused to do so." cast us in the group of cases referred to in the Am.Jur. text last above quoted.
A note to the Am.Jur. text gives the following illustration: "A landlord who entices the tenant outside the building by a ruse and then locks the door and forcibly prevents a re-entry is guilty of forcible entry and detainer. Pelavin v. Misner,241 Mich. 209, 217 N.W. 36, 60 A.L.R. 276."
Since we know that many of our earlier statutes were patterned after those of California, I give further emphasis to the system in that jurisdiction. See White v. Pfieffer, decided by the Supreme Court of California in 1913 and reported in 165 Cal. 740,134 P. 321. The court said: "The premises were vacant when defendant entered them; they had theretofore been occupied by tenants of the plaintiff. This appearing, appellant asserts that, to support an action for forcible detainer based upon an unlawful entry, actual physical possession of the property by the plaintiff when the alleged unlawful entry is made must be shown. But the complete answer to this *Page 138 is afforded by section 1172 of the Code of Civil Procedure where, as showing the possession required of the plaintiff in forcible detainer, it is declared that a plaintiff shall only be required to show that he `was entitled to the possession at the time of the forcible detainer.'"
I went back to the California statutes and find in the Code of Civil Procedure of 1903 that the section cited in the opinion declares: "On the trial of the proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time of forcible entry, or was entitled to the possession atthe time of the forcible detainer." (Emphasis supplied.) Section 1172.
I observe that this statute was enacted March 11, 1872. This was three or four years prior to the original enactment of our statutes on forcible entry and detainer which, as amended in some particulars, are in force at the present time. It is not unlikely that our territorial legislature of 1875-76 may have borrowed the spirit of the California statute and accomplished the same purpose by use of the words in the form which indicated that the plaintiff could either plead that he was "lawfully possessed" or "lawfully entitled to the possession" of the premises described.
Going to one of the older texts, the American and English Cyclopedia of Law, Vol. 13, article on forcible entry and detainer, page 753, I find this statement: "In some cases the action may be brought by the person having the right of possession although he never had possession in fact of the land. Thus, when an entry is made into vacant or unoccupied lands or tenements without right or title, the person entitled to the premises may bring an action for their recovery."
In Standard Encyclopedia of Procedure, Vol. 8, on forcible entry and detainer at page 1110, 1111, it is said:
"The complaint must show that plaintiff had possession or wasentitled thereto at the time of the defendant's entry or wrongful holding. But a complaint that sets forth the facts constituting title and right of possession and the unlawful detention, is sufficient without alleging the legal conclusion that plaintiff is the owner of and entitled to possession, or that the possession is wrongfully detained from him. * * *
"While an allegation that a party is entitled to possession is usually a mere conclusion of law; in actions for forcible detainer such an allegation is sufficient, without setting out the facts upon which it is based." (Emphasis supplied.)
In Central Law Journal, Vol. 29 (1889), at page 124 there is an article on "Forcible Entry and Detainer and Unlawful Detainer" in which the broad statement is made: "In the action of forcible entry and detainer, it appears that the plaintiff must have had a prior actual and peaceble *Page 139 possession of the land sought to be recovered." Further on, however, it is said: "It has been held, however, that taking possession of a house, at the time unoccupied, will not constitute the offense of forcible entry.The contrary doctrine was announced in Wisconsin." (Emphasis supplied.)
That reflects the two doctrines. The writer went on to say: "In the Wisconsin case the court say: `The dwelling house was undoubtedly in the possession of the plaintiff, though vacant at the time. The doors and windows were all fastened in the usual manner. There had been some negotiations between the parties about purchasing the property, but it is fair to assume that no trade had been consummated by a sale and delivery of possession. The plaintiff held the key. The defendant had asked him for it and had been refused. The defendant then made an entry into the house after dark, by forcing open a window which was fastened, after trying to get in through the back door. He thus obtained possession and occupied the house for a day or two with his family and household goods before the plaintiff knew of his entry."
In the case at bar it is apparent from the allegations of the complaint in forcible entry and detainer that someone, perhaps in privity with the plaintiff, had been in possession of the premises because there was a fence around the premises and a building upon it which the defendant is charged to have invaded by taking down the gate in the fence and forcing open the door of the building on the premises. We are in the dark as to whether the plaintiff had previously been in possession of premises and was temporarily absent, or whether his ancestors or predecessors in title had been in possession of the premises. Perhaps the plaintiff could have made out a case of possession notwithstanding a temporary absence, or that the premises were vacant at the time of the unlawful entry, but he did not have to do so since the statute authorizes the plaintiff to allege that he is "entitled to the possession."
The article in the Central Law Journal, supra, goes on to say: "And in Texas it is held that an entry made in the absence of a plaintiff is a forcible entry. So also, in New Jersey, it was said by Chief Justice Beasley that, even at common law the taking possession of a house by breaking into it, in the absence of the owner, constituted a forcible entry."
It has been said that it is illogical to say that a defendant forcibly entered the premises of the plaintiff when the plaintiff was not at the moment in the actual physical occupancy of the land. It may be conceded that an intruder on land cannot by his ouster engage in a physical encounter with the owner or one entitled to the immediate possession of the land if he is not on the land at the time of the entry by defendant, but all the same the possession of the owner may be invaded by violent acts, or by the fraud or stealth of the invader. *Page 140
As I have said, some courts including our own have probably given too narrow a meaning to the phrase "lawfully possessed" and to the word "possession". I think the Illinois Appellate Court in Baragiano v. Villani, 117 Ill. App. 372 correctly defined possession as follows: "Possession means simply the owning or having in one's power. It may be actual, or it may be constructive."
I think the majority and others have confused "possession" with "occupancy".
The Restatement of the Law of Torts, dealing with offenses involving land, has at Sec. 157 defined "Possession":
"In the Restatement of this Subject, a person who is in possession of land includes and includes only one who
"(a) is in occupancy of land with intent to control it, or
"(b) has been but no longer is in occupancy of land with intent to control it, if, after he has ceased his occupancy, no other person has obtained possession as stated in Clause (a), or
"(c) has the right as against all persons to immediate occupancy of land, if no other person is in possession as stated in Clauses (a) and (b)."
So the right to immediate occupancy in my opinion will satisfy either allegation of the form, "lawfully possessed" or "lawfully entitled to the possession".
I think the legislature, in the form prescribed, planned it that way out of abundant caution to forestall the contention made in the case at bar by appellant and accepted by the majority.
In all the foregoing I have discussed the statute merely as it stood prior to any amendment. Examining the amendments to the statute, it seems perfectly plain that the Court in Romero v. Gonzales, supra, having said that it meant something different from what Chief Justice Prince, and Catron and Thornton said that it meant, that the legislature in its session in 1884, Ch. 4, set about to repeal the opinion of Bristol, J. in Romero v. Gonzales, at least in so far as the farmers were concerned, by the enactment of a statute which is carried forward as Sec. 38-902, and is as follows: "Occupation and cultivation prevent absence from constituting abandonment — Remedy against person making adverse entry. — Any person who may be lawfully and peaceably in the possession of any land, and shall have cultivated, occupied or used the same, or any part thereof, in any one (1) year, shall not be deemed or held to have abandoned the same when absent therefrom, unless he fails to re-enter the same in good faith on or before the fifteenth day of April, next following the last year in which he cultivated, occupied or used the same, with the intent of occupying, cultivating or using the same, or some part thereof, from year to year — and any person who may make an adverse entry to him during such time, except lessees, after the expiration of their term, and persons, whose permission he has to use, occupy or cultivate *Page 141 the same, or any part thereof, and after such permission expires, shall be deemed guilty of forcible entry and unlawful detainer, and subject to the laws governing the same."
After 1884, therefore, it was not necessary, as Bristol, J. said in Romero v. Gonzales, that the plaintiff had to be in the actual physical occupancy of his land at the time of the forcible entry. (At least if he were a farmer.)
Then in 1889, which was just six years after the case of Romero v. Gonzales was decided, the legislature, by Ch. 92 of the session laws of that year, completely repealed the opinion of Bristol, J., by saying that it was not necessary that there be any breach of the peace, and added in very sweeping language: "it shall be sufficient to prove that defendant entered upon and occupied the premises against the will or consent of the owner or owners thereof; and that after having been notified by the owner, his agent or attorney to vacate the same, he refused to do so."
That amendment brought our statute within the class of statutes of other jurisdictions referred to in the Am.Jur. text, which I have heretofore quoted: "In some jurisdictions forcible entry is defined by statute as including any entry, however quiet, against the will or merely without the consent of the party in possession;"
I think that these amendments whittle down our decisions to two in number insofar as they may seem to be contrary to a proper interpretation of the statute. Romero v. Gonzales has been repealed by the amendment even if it was ever right, and Patten v. Balch, 15 N.M. 276, 106 P. 388, is very unsatisfactory and difficult to understand, and it is rather doubtful that it holds the same thing that Romero v. Gonzales did. Then, coming to Murrah v. Acrey, 19 N.M. 228, 142 P. 143, which was written by Judge Roberts who was an able and careful lawyer, my only explanation is that the statute was not reconsidered carefully and the question involved, growing out of a conflict of claims of rights to possession of unsurveyed public lands, Romero v. Gonzales was cited without taking into consideration that it had been repealed by the legislature.
Then in Heron v. Ramsey, 45 N.M. 491, 117 P.2d 247, we had our minds on the sufficiency of the possession of the plaintiff, and again followed these older cases without a reexamination of the statute.
I would favor a declaration that these cases shall be no longer followed since they establish no rule of property.
There is a practical explanation for our legislature in 1875-76 broadening the scope of the forcible entry and detainer action beyond that existing in some other jurisdictions. I get this thought from the opinion of the Montana Supreme Court in Cashman v. Vickers, 69 Mont. 516, 223 P. 897, 900, where the Court was discussing the jurisdiction of justices of the peace in forcible entry and detainer cases *Page 142 and showing why the jurisdiction of the justices of the peace ought to be upheld. The Court said: "Montana is a state of vast extent. While large portions of it are susceptible of close settlement, others by reason of physical conditions can never be otherwise than sparsely occupied. And yet in the less-favored portions there are and will be valuable ranches, farms, and mines, and villages and towns. In 1889 there were but 16 counties in all Montana, 2 of them, Custer and Dawson, being two of the largest, if not the two largest, counties in the United States. Now, 35 years later, there are 16 counties, and some of them are very large, within the territory formerly embraced within the boundaries of Custer and Dawson. The Constitution provided for eight judicial districts, the seventh comprising Yellowstone, Custer, and Dawson counties. Article 8, § 13. The Constitution commands that four terms of the district court shall be held yearly in each county (section 17), but the framers knew there might be long intervals between jury terms. Long distances from the county seats in the extensive counties of Montana there were towns in which there were justices of the peace. Thus justices' courts were available to suitors in forcible entry and unlawful detainer actions. If resort to the district court had been compelled, long trips to the county seat with consequent inconvenience and expense, as well as great delay, would have been the certain result, and justice delayed frequently would have been justice denied. It was foreseen that unless a wide jurisdiction was given justices' courts in actions for forcible entry, forcible detainer, and unlawful detainer, relief from the district court being unavailable for long periods of time, serious and frequent disturbances of the peace — the very evils which the remedy of forcible entry and detainer was designed to prevent — were certain to result."
That history of the situation in Montana fits early New Mexico conditions like a glove.
I do not think we should be troubled at the present time about the question of jurisdiction of justices of the peace in forcible entry and detainer cases as affected by the question of whether "the title to real estate or the boundaries of land may be drawn in dispute." That is a question which would have to be settled according to the facts of the particular case.
For instance, under Sec. 38-901, Code 1941, sub-paragraph "Fourth" it is said that the remedy is available "when the defendant continues in possession after a sale by foreclosure of mortgage, or on execution, unless he claims by a title paramount to the mortgage by virtue of which the sale was made, or by title derived from the purchaser at the sale." I would hesitate to say that that provision is necessarily unconstitutional.
In 115 A.L.R. at page 504, is an annotation on the subject "When title to real property deemed involved within the contemplation *Page 143 of the statute providing that justices of the peace (or similar court) shall not have jurisdiction of matters relating to title of land." At page 510 is a subdivision of the annotation treating of "actions to recover possession of land." The writer of the annotation says: "In actions to recover possession of land, such as actions for forcible entry and detainer, generally, but not universally, the title to the land is not involved so as to divest of jurisdiction a justice's court or a court having similar jurisdiction in this respect." There are a great many citations to this statement.
It is the facts attempted to be proved which will determine the question in each individual case.
We have already decided: "Question of title to land raised only indirectly will not oust jurisdiction of justice of the peace." To this decision is appended the annotation above referred to.
It is my view that since the judgment in a forcible entry and detainer case does not purport to pass title, the question of whether plaintiff has title is only incidental to plaintiff's right of possession.
In a forcible entry and detainer case there is no prayer that title be adjudicated, and logically there is nothing to deprive the justice court of jurisdiction from the circumstance that plaintiff may offer a deed in evidence to show that he is entitled to possession. There could be no contention that the decision of the justice court that plaintiff upon the basis of evidence of title was entitled to possession would be res judicata as to title.
From all of the foregoing I conclude that the appellant's complaint stated a cause of action. Therefore I dissent.