Watson v. Whitney

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton J. concurring.

This is an action for forcible entry and detainer. The facts are substantially as follows: The tract of land in controversy was inclosed at the time of the forcible entry, which took place December 31st, 1862, and had been in the quiet and peaceable possession of the plaintiff or his tenants ever since 1856. On that day, Watson, the plaintiff, and several persons with him, went to the place where the defendant, with six or seven others, was engaged in constructing a small house. The plaintiff asked whose house is that, to which the defendant replied that it was his; and the plaintiff then demanded peaceable possession, to which the defendant answered that he could not have it. Whitney and those with him were armed; and the plaintiff then said, “ I see you are ah armed, and that is enough.” One of the persons who went there with the plaintiff struck the house with an ax; and one of the defendant’s party presented a pistol at him, and told him that if he struck again he would shoot him. He did not strike again, but replied that he would throw the ax at him if he did not drop the pistol. These facts, which are not controverted, clearly show a forcible entry and detainer within the provisions of the statute, and within the rules laid down by this Court on that subject. There was an unu[377]sual assemblage of armed men with the defendant, and the plaintiff had just grounds to apprehend violence if he had attempted to retain possession, or remove the defendant from his land. Actual threats were also used of violence to the plaintiff or those who accompanied him. The jury that tried the case returned a verdict in favor of the plaintiff, on which judgment was rendered for restitution of the premises with treble damages, from which the defendant appeals. —— \\!>

{The defendant filed an answer while the case was pending before the Justice of the Peace, in which, after denying generally the allegations of the complaint, he averred that he entered peaceably, on the day named, upon a certain quarter section of land described by the public surveys, which includes about ten acres of the tract described in the plaintiff’s complaint; that he had a right to enter thereon under the preemption laws of the United States; that it was public land; had been surveyed by the United States Surveyors as such, and was subject to the preemption laws. The Justice, on motion, struck out all of this answer, except that part denying the allegations of the complaint. When the. case came up in the County Court on appeal, the defendant moved the Court to reverse this order of the Justice, and to send the case back to the Justice with an order requiring him to certify it to the District Court for trial, which motion was denied by the Court, and this is assigned for error. It is unnecessary to determine, in this case, whether title can be put in issue in actions of this kind, and thus require the ease to be sent to the District Court for trial. The affirmative allegations in the answer show no title in the defendant, but merely an attempt on his part to comply with the preemption laws of the United States, as a means of procuring a title at some future time. There was, therefore, no error in refusing to send the case to the District Court for trial. Nor was there any error in refusing to reverse the order of the Justice. If the defendant desired to amend his answer by adding that part stricken out by the Justice, he should have made a motion to that effect in the County Court. He has not been prejudiced in any way by this action of the Justice, as the twentieth section of the Forcible Entry Act allows all matters of excuse, justification, or avoidance, to be given