The State against Richard Gilbert.
Columbia,
1802.
^s°^eg self on land, or enters af-» ter judgment merTntruder] riffdwhc>eishin restitution, may turn him out of possession. > An indict, ment -will lie upon a forcible detainer against a third
UPON an indictment for a forcible entry and detainer. Verdict guilty. Motion for a new trial.
The defendant had been indicted for a forcible entry and detainer of lands belonging to the honourable Judge Grimke, in Union district. Upon the trial of this cause, it appeared, 1 r that Thomas Brandon, the father-in-law of the defendant, had been indicted for a forcible entry on the same lands at Pinckneyville, when Union county formed a part of the former district of Pinckney, some years previous to this trial; and when called upon to answer, pleaded guilty to the . ,. . , indictment, and judgment was entered up against him ac- •,. , eordmgly*
Some time after, however, by some contrivance between him and his son-in-law Gilbert, the present defendant, the latter was put into possession, or took possession of this land before any writ of restitution had issued at the suit of Judge Grimke. Indeed, from Brandon’s pleading guilty to the indictment, which acknowledged the legal possession to have been in Judge Grimke before he entered, no writ was actually afterwards taken out against Brandon. But upon Gilberts entry, a writ was issued upon that judgment; and the former sheriff of Pinckney district was obliged to raise the fosse comitatus, as Gilbert and his wife, who were supported by Brandon and his adherents, resisted the sheriff in getting possession.
The sheriff, however, at length turned defendant and his wife out, and gave the peaceable and quiet possession of the house on the premises to one Absalom Bobo, the overseer or agent of judge Grimke, who nailed up the doors and windows of the house, after which he returned home.
The next day, Gilbert and his wife returned, and opened the doors and windows of the house and entered again, and Gilbert declared that he would keep possession against all *356the world. This indictment, therefore, was for this second entry an¿ detainer by Gilbert.
Mr* Noli, on the part of the defendant,
urged, that the writ of possession had issued against Thomas Brandon, who had confessed the unlawful entry. That Brandon had relinquished the possession, therefore the writ was a dead letter as to him; he was not to be found on the land. And he was not answerable for the conduct of Gilbert the defendant, who might have a good title to the premises in question ; and he ought to have his title tried before he could be dispossessed. That by turning him out, in this short handed way, he might be deprived of his possessory right, which might in time ripen into a good and legal title. He went peaceably into possession, and therefore ought to. be evicted by suit at law, for trying title before he was turned out again.
Mr. Solicitor Thompson contended,
that this was a mere contrivance or combination between Brandon and his son-in-law Gilbert, to harass and oppress Judge Grimke, who had bought this land at sheriff’s sale, and had been in peaceable possession for some years before Brandon entered. That Brandon had turned out a Mr. Simons, a tenant of Judge Grimke’s, before he took possession; but af-terwards, he was so sensible of his misconduct, that he pleaded guilty to an indictment against him; upon which judgment had been entered up, and a writ of restitution had issued. When the sheriff, colonel Bratton, went to the premises to give possession to Judge Grimke’s agent, he found the defendant Gilbert in possession, who, together with his wife, supported by their adherents, resisted the sheriff to such a degree, that he was obliged to raise the posse comitatus ; and before he could get possession, was obliged to pull down part of the house; and had nearly lost his life, by a lunge from the defendant’s wife, after he had entered the house, by a bayonet at the end of a pike staff, which in all probability would have killed him, had not his *357eye caught the weapon while she was in the act of making this lunge, which enabled him to parry it off. These circumstances, he said, he only mentioned to shew the violence of the parties, and how little they deserved the countenance and support of a court of justice. That upon the whole, the conduct of the defendant was outrageous to the last degree. But what made it still more so, was the defendant’s entering again the next day, and breaking open the doors and windows of the house, after the sheriff of the district had turned him out and given quiet possession of the premises to Judge Grhnké’s agent. That this conduct was not only an open and flagrant violation of the laws of the country, but would, if permitted to go unpunished, defeat this peaceable and quiet remedy of getting possession of lands, which had been forcibly entered on and detained by turbulent and violent men, in open defiance of all law and justice. And the kind of trick practised, if countenanced, would (independent of the violence offered on this occasion) entirely defeat the remedy; for it would only be for one intruder, after a writ of possession was issued, to abandon, and put in a stranger or third person, and then that stranger another, and so on, till there would be no end to these kind of practices and subterfuges, which would prove subversive of this salutary remedy, in open defiance of the authority of the courts of justice.
The presiding Judge, (Bay,)
in his charge to the jury, mentioned, that this was the quiet and peaceable remedy which the law had wisely devised, to put men into the quiet and peaceable possession of lands, from which they had been driven and expelled, by high handed, violent and turbulent men, who did not choose to submit themselves to the rules of law, but rather chose to depend upon the strong arm of power and violence to support their rights. That perhaps a wiser and better remedy was never devised by men in civil society than the one now pursued, as it went to check broils and bloodshed, by arraying the power of the country against a bold, daring intruder, instead of leaving *358the quiet possessor, or injured man, to the necessity of taking justice by his own arm. That it was a well knowri maxim of law, that no man could recover lands but by the strength of his own title ; it did not depend upon the weakness of his adversary’s. It was well known also, that in this country, five years’ quiet possession of lands, not only cured defective titles, but gave a man a title to lands who had no other claim but possession. Possession, therefore, was a matter of vast importance to the citizens of this country.
The kind of injury, therefore, which had been committed by Brandon originally in this case, was one of the highest which could be offered to the rights of landed property -, as it had entirely changed the position of the parties, and would have made Judge Grimke the plaintiff in any action to try the title to the land in question ; instead of Brandon being plaintiff, which would have been permitting him to have carved out for himself a presumptive title, by his own violent act, which the law abhors. This remedy, was, therefore, calculated to place the parties in their original situation, and to leave them to their mutual remedies at law without force or violence. That the conduct of Brandon in confederating with Gilbert, and that of Gilbert in being concerned in the execution of the plan concerted by Brandon, in entering into this land after the judgment against Bran. don, was extremely reprehensible and illegal. For if it were once permitted for a defendant against whom there was a judgment, on a forcible entry and detainer, to put in a third person, or for a third person to enter afterwards, with a view of again putting a plaintiff’s title to the rack, such third person might again in his turn, after judgment against him, put another into possession, or permit him to enter ; so that there might be prosecutions without end, and the object of regaining possession by the plaintiff, would be as far off, as at the commencement of his first remedy, to regain his possession, to the utter subversion of all justice.
That the sheriff who had the writ of restitution, was well warranted in law, in turning out Gilbert or any other person *359whom he found in possession of the premises, as the exigency of the writ commanded him to do ; and Gilbert’s entering again the next day after Judge Grimké’s agent had obtained possession, was a high misdemeanor; with the additional aggravation, that it was done in open defiance of law, and the supreme authority of the country.
The jury without hesitation found the defendant guilty % and on the last day of the circuit court, when defendant was called upon to receive the sentence of the court, his counsel gave notice of a motion for a new trial at the next constitutional court of appeals at Columbia, on the ground of misdirection.
In support of the motion for a new trial, Mr. Nott took the same grounds which he urged on the trial at Union, when the court after hearing the arguments for the motion, thought it unnecessary to hear counsel against it, and were unanimously of opinion, that the rule should be discharged, as they concurred with the presiding judge on the trial in his construction of the law on this subject.
The defendant was then fined, and ordered to give securities for his good behaviour, but he absconded and soon after left the state.
Present, Waties, Bay, Johnson, Teezevant and BREVARD,