Phelps v. Baldwin

Hinman, J.

The complaint in this case is founded upon the statute directing proceedings against persons guilty ol forcible entry or detainer of lands. The statute enacts, “ that whenever any person shall make forcible entry into any houses, lands, or tenements, and, with strong hand, shall detain the same ; or having made a peaceable entry, without the consent of the actual possessor, shall hold and detain the same,, with force and strong hand ; the party ejected or held out of possession, may exhibit his complaint,” &c. Stat. 285. (ed. 1838.) The recovery was upon the 2d count; which was for a forcible detainer of the land described in it. To bring the case within the provision that requires the entry to be made without the consent of the actual possessor, the complainant should have alleged, that he was in the actual possession of the land, at the time of the defendants’ entry. But there is no such allegation in this complaint ; nor does it appear from it, that, the complainant ever was in possession of the land in question. The allegation is, that the defendants, peaceably, and without the consent of the complainant, entered, and that they, unlawfully and unjustly, ami wit It strong hand, do deforce and keep the complainant out of possession. Now, it is perfectly consistent with all this, that the complainant never was in possession of this land. It is said, indeed, that the word “ deforce” implies that the plaintiff had been in possession ; but this word signifieth, says Lord Coke, to withhold lands or tenements from the rightful owner. Co. Litt. 331. b. But this proceeding is not founded at all upon title. The complainant may be the rightful owner of the land, and entitled to recover it, in an action of ejectment; but he can have no right, upon this statute, unless he brings his case within its provisions. As he has not done this, tire proceedings are erroneous.

It was said, the defect, if any, was cured by verdict. This is incorrect. It is not a defect of form merely, but of substance. It is not a good title or right defectively stated, but the omission to state any title at all. The very foundation of the complainant’s right to recover upon this statute, his *213actual possession of the land, is wholly omitted. This cannot be cured ; and the judgment, therefore, must be reversed.

In this opinion the other Judges concurred, except Stores, I., who was absent.

Judgment reversed.