Dissenting Opinion
Mttrchie, J.I am unable to concur. Practice which has the sanction of long use should rarely be cast aside, and never so, in my opinion, without a clear declaration of the procedure which should take its place.
The decision that forcible entry process is not available for an alienee of property, against the former tenant at will of his *148alienor in possession, until after opportunity has been given the latter to vacate the premises without suit, is contrary to earlier decisions in this Court and to the trend of a considerable line thereof. The majority declares the procedure attempted to be used by the plaintiff in the instant case improper, but fails entirely to state how an alienee entitled to the possession of property should proceed to secure it.
In the majority opinion, hereinafter referred as the “Opinion,” emphasis, laid by italics, on words quoted from Howard v. Merriman, 5 Cush., 563, implies that notice, entry and demand are all requisite, but there is suggestion that notice may be sufficient, if time is allowed for removal, and recital that the defendant in Bennett et al. v. Casavant, 129 Me., 123,150 A., 319, had knowledge that an instrument of alienation had been executed by his former landlord, and delivered to the plaintiffs, indicates that notice in such circumstances is unnecessary, although it is difficult to understand how a time element could then be measured. The words controlling the decision, that “defendant was entitled to notice of the lease before action was brought,” adjudicate that notice, or something equivalent thereto, and time, for which no equivalent is possible, are both essential. The time factor is not delimited.
Of eight exceptions presented, three have no merit. Neither the first nor the second alleges a specific error of law, and the eighth is untenable under the principle declared in Bennett et al. v. Casavant, supra, that fraud will not vitiate the power of a lease to determine a tenancy at will, and the right to occupy premises thereunder. The third, fourth and seventh relate to demand rather than notice, although the last alleges error in failure to distinguish between the two. Since demand is not mentioned in the Opinion, except by way of comment on Karahalies v. Dukais, 108 Me., 527, 81 A., 1011, and Howard v. Merriam, supra, and in quotations from cases, the decision must rest on the fifth and sixth exceptions which allege that “there could be no disseisin,” respectively, until the parties *149made it so by their acts, or without intent on the part of the defendant “to exclude the plaintiff from her rights.”
Decision on either of these grounds, if time for removal is requisite, is directly opposed to Rancourt v. Nichols, 139 Me., 339, 31 A., (2d), 410, where lease, notice and process were executed, given and commenced on the same day, and, if the time element must be measured from notice, or knowledge that an alienee desires possession as distinguished from knowing that he has acquired the right thereto, it is incompatible with Bennett et al. v. Casavant, supra. Neither in that case nor in the language used in the Opinion to distinguish it from the present one is there implication that the defendant knew the plaintiffs sought possession previous to the service of process upon him. The opinion therein carries no intimation that the dates of lease, knowledge and process were alleged, proved or considered. That they were not deemed important is clearly implied in declaration that the lease “put an end to the right of the defendant to occupy the demanded premises.” For this broad statement, rather than the more limited one that alienation determined the tenancy, the Bennett case cites Seavey v. Cloudman, 90 Me., 536, 38 A., 540, and dictum in Karahalies v. Dukais, supra. Neither goes quite so far, unless determination of tenancy ends the right of occupation, but both declare the process appropriate for use by an alienee, and neither alludes to necessity for either action on his part, or the lapse of time, before service of process on the former tenant of his alienor.
Unless the Opinion is intended to declare a time factor involving more than one day, the decision runs counter also to Karahalies v. Dukais, supra. There lawful entry, determination of tenancy, demand for possession and refusal to quit were all present, and the Court recognized that the plaintiff relied upon disseisin and might have prevailed on that ground, but recovery was denied because the declaration did not allege that the defendant was either a disseisor, or a tenant whose estate had been determined under the statute.
*150The above cases do not include all that are contravened by the present decision. In John et al. v. Sabattis, 69 Me., 473, and Folsom, v. Clark, 72 Me., 44, possession was recovered against former tenants of deceased life tenants, as disseisors, without intimation of need for declaration, or proof, of notice, knowledge, demand for possession, or time for removal. Before either of these Chief Justice Whitman had stated, in Wheeler v. Wood, 25 Me., 287, that one in the situation of the present defendant was “a disseisor, or tenant at sufferance,” indicating his view, and that of the Court for which he spoke, that there was no distinction between the two so far as right to possession was concerned. Reference in the Opinion to a notice “disregard of which” (by a tenant at sufferance) “will constitute him a disseisor” suggests that the process is not available against a tenant at sufferance, whose earlier tenancy at will had been determined by operation of law, until he asserts a possession which, if continued, would give him a possessory title.
The decision is grounded in construction of our statute, fortified by Massachusetts authority. The theme which underlies construction is that the process if of “a highly tortious character,” for which no authority is cited, nor can any be found in either textbook or decided case, although 36 C. J. S., 1146, Par. 3, says that the action sounds “in tort,” when it provides remedy “against forcible invasion.” The same thought is expressed in the definition of the word “disseisin” in 18 C. J., 1284. Following the material quoted in the Opinion, the text continues:
“The term also has been judicially defined as an ouster; an actual ouster; a tortious ouster; . . . Disseisin occurs only when an entry is made . . . unlawfully . . . with the intent to hold . . . under claim adverse.”
If the statute as amended in 1850, as hereafter noted, is to be construed in accordance with such a definition, then the enact*151ment of that year did not eliminate the requirement of force, but imposed the more restricted element of intent to exclude the party entitled and restricted rather than enlarged the field in which the process of forcible entry might be used. The cases of Reed v. Elwell et al., 46 Me., 270, and Dyer v. Chick, 52 Me., 350, which are the only ones subsequent to 1850 cited as authority, relate to the rights of mortgagor and mortgagee and decisions in both Maine and Massachusetts have always held forcible entry process inappropriate against a mortgagor before foreclosure.
Prior to the separation of Maine from Massachusetts, the process was available only where actual force was involved. Our first Legislature extended it to reach tenants, after unlawful refusal to quit, Statutes of 1821, Chap. 79; Wheeler v. Wood, supra; but until 1849, one could proceed under this extension only against his own former tenant, Wheeler v. Wood, supra, and then only when the unlawful holding exceeded 30 days, Clapp v. Paine, 18 Me., 264; Smith v. Rowe, 31 Me., 212; Dutton v. Colby, 35 Me., 505. Until 1850 the process could not be used against anyone other than a former tenant of the plaintiff, except where the entry or detainer alleged was both “unlawful and forcible,” R. S. (1840), Chap. 128, Sec. 2; Wheeler v. Wood, supra. The last is one of two leading cases heretofore decided under our statute and affirms the principles which in 1845, and at earlier times, controlled its application. It is neither cited nor mentioned in the Opinion, perhaps because of the comment heretofore quoted from it, and declarations that a tenant at sufferance has no estate in property, and may be turned out “without ceremony.”
Inquiry as to legislative intention, underlying R. S. (1930), Chap. 108, Sec. 1, should be directed to the enactments of 1847, 1850 and 1853, to which its provisions trace back, but there may be helpful indication in an 1849 law, incorporated in 1857 in the following section. P. L. 1847, Chap. 4, is not pertinent to the present inquiry, although it extended the avail*152ability of the process in a minor degree. P. L. 1849, Chap. 98, opened it for use against an occupant of property who had never been a tenant of the plaintiff, and P. L. 1853, Chap. 39, eliminated the notice earlier required in tenancy cases after an estate had been determined. The major change during the years 1847 to 1853 inclusive, as during the whole life of the statutory process, was made by P. L. 1850, Chap. 160. There the requirement of force was eliminated, and the word “disseisor” first appeared in the statute, substituting whoever might be so described for one whose entry or detainer was both unlawful and forcible, and provision was included that the process would lie against either a former tenant or a disseisor without notice to quit. This notice to quit could not have been the statutory one for determining a tenancy, for concurrent proviso was that proceedings against a former tenant must be commenced within 7 days of the expiration or forfeiture of his term. It is palpable .that legislative intention in 1850, as in 1847 and 1849, and later in 1853, was to extend the process and expedite recovery under it. It is probable that the word “disseisor” was used with intention and expectation, in the light of the court declaration made 5 years earlier in Wheeler v. Wood, supra, that it would be interpreted to include tenants at sufferance. Many years later Hathorn v. Robinson et al., 98 Me., 334,56 A., 1057, carried comment that the framers of a statute might use a particular word in expectation that its interpretation would follow that declared in decided cases.
The phraseology of P. L. 1850, Chap. 160, was changed in our statutory revision of 1857 so that the authorization for process without notice may be read as applicable only to former tenants, and at the same time P. L. 1849, Chap. 98, was placed in a section which deals exclusively with tenancies at will, but in seeking to ascertain legislative intent from the use of words, the context in which they were originally placed should be given consideration, rather than an adaptation arranged in the work of statutory revision.
*153The original sources of our present statute are not mentioned in the Opinion which bases construction on the single word “disseisor” and fortifies the result by reference to an opinion which does not use the word in rendering decision under a statute in which it did not appear, Furlong v. Leary, 8 Cush. (Mass.), 409. Reference to the case shows a proceeding instituted under the Massachusetts statute, which appears as Chapter 104 of the Massachusetts Statutes in the revision of 1836. This relates back to a law enacted in 1825 (Chapter 89). Hildreth v. Gonant, 10 Met., 298, decided in 1845, quotes section 1 of the 1825 law in words very different from those appearing in the revision. The original enactment provided, as the case states, that:
“ ‘where the tenant or occupant of any house or tenement shall hold such house or tenement without right, and after notice in writing to quit the same, whoever has the right of possession thereof may summon such tenant or occupant’ etc.”
The phrase relative to notice is emphasized for the dual purpose of (1) noting that its quotation, 9 years after the revision, demonstrates that the court referred back to first sources in construing a statute as currently phrased, and (2) calling attention to the fact that no language of like import has ever appeared in our own statute.
The Opinion refers to a review of earlier decisions in Howard v. Merriam, supra, but fails to note that the case carries also a review of legislation which seems to forecast the decision in Furlong v. Leary, supra, in declaration that the process did not reach “every wrongdoer, or person holding possession . . . without right.” These words clearly imply, contrary to the Opinion, that one who occupies without right is a wrongdoer, for a tenant at sufferance has no estate in, or right to occupy, premises, Wheeler v. Wood, supra. The Opinion does not cite the second of our own leading cases, Dunning v. Finson, 46 Me., *154546, where it is disclosed that the review of legislation in Howard v. Merriam, supra, had been read and appreciated. That case carries one statement of especial force in view of the emphasis laid on Massachusetts decisions in the Opinion. After earlier declaration that the language of the Massachusetts statute was more restricted than our own, it is expressly stated that:
“cases in Massachusetts cannot control the plain language of our. statute on this subject.”
The Dunning case is cited in Lawrence’s Maine Digest as declaring forcible entry process maintainable against a tenant at sufferance without notice. It may be doubted that the decision represents square authority on the point, although the court, in stating that the statute does not include a tenant at sufferance “in terms,” seems plainly to imply that it is applicable to such a tenant, and if so applicable, it can be so only on the theory that his rights are similar to and no greater than those of such a tenant. In Gower v. Watters, 125 Me., 223,132 A., 550,45 A. L. R. 309, declaration in the Dunning case, that the holding of a tenant at sufferance is without right of any kind, was reaffirmed.
There can be no doubt that one who continues in possession of property after the expiration or forfeiture of his own leasehold estate, or that of another under whom he holds, becomes a tenant at sufferance, and this whether the forfeiture results from his own act or that of his landlord, if he be a sub-tenant. It is equally clear that he has no' right to continue in possession, to notice, or to time for removal, for such is the express mandate of our law making authority, declared in the very statute construed by the Opinion. There is no statute authority for dividing tenants at sufferance into classes and vesting rights in those who become such by the determination of estates at will through operation of law greater than are held by others who acquire the status in different manner. It is the law, notwith*155standing the statement of the Opinion contra, that one who entered property lawfully as a tenant, if his estate had been determined by forfeiture resulting from his own act or that of another, may, without notice (or time for removal), be “made to answer to a judgment carrying costs and execution running against the body” sans opportunity to avoid liability, unless our courts, following decisions like those rendered in Mississsippi, New York and Oklahoma, in Robe v. Fyler, 18 Miss., 440, 38 A.D., 763; Mandel v. Fertig, 65 MisC., 310,121 N.Y.S., 669; and Obert v. Zahn, 45 Okla., 219, 145 P., 403, determine that judgment will not be entered (for costs) in forcible entry cases when a defendant vacates before return day. The statutes under which these cases were decided may be very different from our own, but the pleading suggested for defendant’s protection in the Oklahoma case has heretofore been used effectively in this jurisdiction. In Ililliker v. Simpson, 92 Me., 590, 43 A., 495, plaintiff sought recovery by writ of entry of both real estate and rents and profits, but after a plea puis darrien continuance, asserting a title acquired subsequent to the commencement of the process, the plaintiff’s claim for rents and profits was declared “a mere incident to the right to the land itself.” The issue in forcible entry process is the right to possession alone, and if a defendant eliminates necessity for adjudication thereon by yielding possession before return day, refusal to award costs against him might well be based on determination that they were purely incidental to that recovery of possession which the statute authorizes.
Costs in the Municipal Court in the instant case, when decision was first rendered that fraud did not vitiate plaintiff’s lease, would have covered little more, if any, than the price of writ, service and entry. They would now include accruals thereto, resulting from appeal to the Superior Court and the prosecution of exceptions against the decision therein. It may fairly be said that, except for a negligible amount, the costs which judgment against the defendant would impose presently *156have accrued principally by his insistence upon an untenable principle of law. He asserts no claim here, nor did he in either of the courts below, that it is unjust to require him to pay costs because he had no opportunity to avoid liability by vacating the premises before suit was brought. Such is the unsolicited relief which the majority of the Court is conferring upon him. His assertion in the Municipal Court, in the Superior Court, and on his exceptions was, and is, that the plaintiff has no right to possession because he claims under a lease which is tainted- with fraud. Decision on that major issue is against him, and it seems to me the mandate should be
Exceptions overruled.