Powell v. Lane 45 Cal. 677

[No. 3,652.]

WINFRED POWELL v. M. B. LANE, JOHN LANE, and MARY LANE.

Unlawful Detainer.—One who has title and present right of entry, is not guilty of an unlawful entry into a building if he enters peaceably and in good faith.

Torcible Entry.—One who has the title and present right of entry, is not guilty of a forcible entry into a building if he enters in the absence of the occupant, and quietly and peaceably removes the occupants’ furniture.

Appeal from the Comity Court of El Dorado County.

This action was brought in September, 1872, under the Forcible Entry and Detainer Act of 1866, to recover possession of a house. The building is on the southeast quarter of section fourteen, township ten north, range eight east, Mount Diablo meridian. The complaint contains three counts: the first under the first section of the statute for a forcible entry; the second under the second section for a forcible detainer; and the third under the third section for a forcible detainer. In 1859 the defendant moved upon the land but not into the house in controversy; and three years before the commencement of the suit he paid for the land and received a certificate of purchase from the United States. A patent was issued to him October 25th, 1871, but was not delivered until some time afterwards. The house in controversy had been vacant for some years prior to October 26th, 1871, on which date, in the evening, the plaintiff entered and took possession, occupying it herself with her family. The defendant on several occasions notified her to leave, and in April, 1872, he dug post holes for a fence in front of the house. On the 15th of July, 1872, about noon, while the plaintiff was absent, the defendant went to the house, went in and took possession, removing the plaintiff’s furniture, without violence, to the other side of the road. When the plaintiff returned in the evening she was refused admission. *678On the next day she demanded the possession, and being refused brought this action. For the purpose of showing good faith the defendant was permitted to introduce his patent in evidence. The Court below instructed the jury that “if the defendants had the title and present right of possession that they might take possession of their property peaceably,” and that “ a peaceable entry made in good faith was not unlawful.” The plaintiff excepted to the instructions. The defendant had judgment and the plaintiff appealed.

George E. Williams, for Appellant,

argued that under the third section of the Act a cause of action had been made out, and cited Randall v. Falkner, 41 Cal. 242. He also argued that by the admission of the patent and the instructions, the Court below had tried the question of title, as the jury must necessarily have looked into the title conveyed by the patent.

George G. Blanchard, for Respondent, cited Shelby v. Houston, 38 Cal. 410; and Townsend v. Little, ante, 673.