This is a writ of error to the Circuit Court for the County of Wayne.
The case was originally brought before a Circuit Court Commissioner, under the statute authorizing summary proceedings to recover the possession of land, and was taken to the court below by appeal. The issue was tried by a jury, who returned a verdict for the complainant.
Upon the trial, the defendant insisted that the complaint set up a forcible detainer as well as a forcible entry, and that to recover the complainant must prove both. The complaint states that on the 16th day of November, the complainant was in the peaceable possession of the premises, and that the defendant unlawfully entered with force and ejected and expelled the complainant, “and has ever since continued and still is unlawfully in the possession of said premises, and, unlawfully holding the same by force, contrary to the statute in such case made and provided; and that complainant is well entitled to the possession,” etc. The statute under which the complaint- was made, provides that “when any forcible entry shall be made, or when an entry shall be made in a peaceable manner, and the possession *468shall be unlawfully held by force, the person entitled to the premises may be restored to the possession thereof in the manner hereinafter provided.”
It will be observed that the statute describes two grounds of proceeding, and that the last one supposes a peaceable entry followed by an unlawful holding by force.
The complaint in question alleges an entry by force, and then proceeds to aver a holding by force also; but this could not constitute a charge on the last ground, since the element of a peaceable entry is not only wanting but would be excluded by the averment that the entry was by force. Whatever language there may be in the complaint not required in a proceeding on the first ground, may be rejected, and the case must be considered as one for forcible entry only.
The complaint in the case of Goffinet against Miles, was properly excluded. The verification supplied no such assurance of the truth of the facts as the statute required, and the complaint was consequently void.
The remaining questions in the case arise out of the charge as given and refusals to charge as requested, and in order to examine them, it is necessary to bring into view the course and drift of the testimony as presented to the court below.
The testimony of the complainant tended to show, among other things, that Miles was in actual possession on the 15th of November, 1867, as the assignee of one Ashley, who was the lessee of James G-offinet, the owner; that Seitz procured Deputy Sheriff Sparling to enter and take possession under a writ of restitution, and which writ was invalid; that the officer, after having so entered, attempted to maintain possession and threatened to expel Miles by force under the authority conferred by the writ; that the officer was countenanced and aided and directed by Seitz in the course pursued; that the purpose was to invest Seitz with the possession, and that Miles, on being told that the officer would *469put Mm out by force under tbe power conferred by tbe writ, departed from tbe premises.
Tbe testimony of tbe defendant tended to show that on tbe 15th of November mentioned, said deputy sheriff took possession in a peaceable manner under tbe before mentioned writ, and that what was done by bim after that, was done in maintaining such possession and in putting Seitz in possession; that at tbe time last mentioned, 1187.25 of rent, under tbe lease from Goffinet to Ashley, was in arrears and unpaid; that such lease contained a provision authorizing a re-entry in case of non-payment of rent when due and payable; that Seitz was tbe agent of Goffinet -for tbe purpose of taking care of tbe premises and collecting tbe rent; that Seitz went with Sparling when the latter took possession, and informed Miles that four months rent was due and unpaid, and that be wanted tbe possession and wanted bim to give up tbe premises without reference to tbe proceedings to recover possession, and that if be would surrender tbe lease be might occupy the premises till tbe middle of February, when Goffinet would be at home, and with whom be could then arrange tbe business, and that Miles agreed to do so, and surrendered tbe key and went quietly away.
Tbe defendant’s counsel requested the court to charge tbe jury that tbe complainant must show that the defendant used violent menaces or actual force, or resorted to means of actual violence or terror; that tbe force implied in ordinary cases of trespass was not sufficient; but that such violence or force must have been used as would constitute a breach of tbe peace.
Tbe court refused such request, but charged the jury on this point as follows: “That if Sparling was there on tbe night in question with tbe writ of restitution for the purpose of executing it, and the defendant threatened tbe plaintiff that if be did not give up possession, Sparling would put bim out by virtue of such writ, and that solely *470because of that threat the plaintiff yielded possession to the defendant rather than be put out by force, then that was a forcible entry, and the defendant was guilty; that no particular circumstances of terror were required when an officer of the law threatened to serve a process of this kind. It was enough that the plaintiff yielded to the threat of service.”
The complainant had the right to act upon the circumstances as they then appeared, and the defendant can not be heard to say that his conduct was inconsistent' with his purpose. He procured a writ of restitution and caused it to be delivered to an officer for service. He attended at the premises with the officer who had the writ in hand. This process was assumed to be valid and equal to its purport. It required the officer to remove the complainant from the premises, and authorized the employment of the necessary force. It was in itself a declaration to the party that he must forthwith yield possession, and that if he did not he would be expelled by force. The conduct of the defendant and the officer spoke no other language. The course of the defendant clearly indicated the design to exert, if necessary, all the power conferred by the writ, and the complainant yielded to such display of force. The proceedings from the beginning were at the defendant’s instance. They constituted a single scheme and were designed to accomplish but one purpose. That purpose was the expulsion of the complainant, and it involved an entry which would be inconsistent with the possession of complainant. '
To constitute a forcible entry within the meaning of the statute, it is not necessary that the actual invasion of the premises should at the very moment be attended by the circumstances requisite t'o give it the character of a forcible entry, or be accompanied by threats, actual force or violence, or any conduct which would constitute a breach of the peace; but if the entry be obtained by stealth or stratagem, or without real violence, and. the party entering evinces his *471purpose in having entered to have been the forcible expulsion of the party in possession, and it is followed up by actual expulsion by means of personal threats or violence, or superior force, it will amount to a forcible entry. — • Willard v. Warren, 17 Wend. 257, and cases cited; Saunders v. Robinson, 5 Met. 343; Commonwealth v. Shattuck, 4 Cush. 141; People v. Smith, 24 Barb. S. C. 16.
The charge of the Circuit Judge on this point, when applied to the testimony given, was in conformity with the view here stated, and is deemed to be correct.
The court was also asked to charge the jury that, if rent was due and unpaid upon the lease, it was not unlawful for the defendant to take possession under the provision authorizing forfeiture if he could do so peaceably, and thereafter hold against complainant. This was refused, but the jury were instructed that it was immaterial whether any rent was due when the defendant took possession; that, if under a claim of rent due, or by an agreement between the parties, the plaintiff yielded possession, the defendant was not guilty.
The foregoing request was based upon the assumption that there was some evidence tending to show that the defendant entered under the provision for re-entry in the lease, but the bill of exceptions shows no such evidence. Whatever testimony was delivered in respect -to the rent in arrears as appears by the record, had reference solely to an imputed agreement by Miles to yield the premises and surrender the lease; and upon this point the case was fairly submitted to the jury, and they must have found that there was no such agreement. As this disposes of all material points, it follows that the judgment must be affirmed, with costs.
Cooley Ch. J. and Campbell J. concurred. Ohristiancy J. did not sit.