Dickinson v. Maguire

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This case was lately decided, and upon a petition for a rehearing we are asked to review our decision.

The first section of the statute of this State, Wood’s Digest, 467, prohibits—1. An unlawful entry into lands, tenements, or other possessions; And 2, A forcible entry when the right of entry exists. The same section then provides, in reference to both these cases, that “if any person do the contrary, and be thereof duly convicted, he shall be punished by fine.” The second and third sections also clearly recognize the distinction between a forcible and unlawful entry.

The phrase, “ other possessions,” qualifies the preceding words, “lands and tenements.” The possession must, therefore, be, actual, peaceable, and exclusive, and not merely such possession as is deemed in law to follow the legal title. (House v. Keiser, October Term, 1857.)

It is clear that, under the provisions of the first, second and third sections, the entry may be simply unlawful and not forcible. What, then, is an unía wful entry ? It is a peaceable entry, by fraud, or without color of title. It is not every peaceable entry, when the right of entry does not, in fact, exist, that constitutes an unlawful entry, within the meaning of the statute. There must be some ingredient of fraud or willful wrong on the part of the party making the entry. If we say that every entry is unlawful, when the party entering has not the strict legal right to do so, then we convert into a penal offence an act that may be done in good faith, and upon reasonable grounds of belief. A party may peaceably enter into the possession of premises to which he has a good prima facie right of entry, and honestly believes himself entitled so to enter. Yet if such an entry were deemed unlawful, as judged by our statute, the question, whether a party was guilty of a penal offence, would depend, not upon the intention, but solely upon the ultimate question of strict title.

If the first, second, and third sections, be construed by themselves, and without reference to other sections and the general spirit and purpose of the act, then it would follow that the [49]action for an unlawful entry could be maintained without the allegation or proof of any force whatever. But to ascertain the true intent and meaning of the Legislature, we must look to the whole statute, taken and construed as an entirety.