Erwin against Olmsted

*Erwin against Olmsted. NEW YORK, May, 1827. a mere exetot0r^urehase confer^right to enter. and^uiid^on other^ho en" ters upon the theTntrudeMn his turn, enters owner^out possession ¡ the owner maintain trespass. One tenant in common has no right to enter upon his co-tenant, and oust him of his possession. If he do so, trespass guare clausum fregit lies for the injury. Trespass guare clausum fregit, and for turning the plaintiff out of his house and destroying his goods; tried at the Montgomery circuit, December 1825, before Williams, 0. Judge, -A-t the trial, the plaintiff proved that, on the 7th Februar5r) 1821, the defendant entered and took possession of a house claimed by, and in possession of the plaintiff, and rem0Te8- and injured his goods, while he was absent with his wife, under a warrant at the suit of the defendant. The 0fplaintiff had been in. possession from the 1st of January preceding. , It farther appeared, that the plaintiff s wife was one oí the children and heirs of Thomas Palmer, deceased; and as such was entitled to an undivided seventh part of locus in quo, subject to the uses declared in the last will of Palmer. The defendant claimed title under an alleged contract between him and one Hawley, who had a power from W. Palmer, one of the heirs, to act for all the heirs of Palmer; by which, on the 1st of November, 1819, it was agreed that W. Palmer should convey the locus in quo to the defendant, and one J. Gr. 0., on their paying $271 25; of which $40 was to be paid December 1st, 1819; and the residue in 5 annual payments. No power from the heirs to W. Palmer was proved. The defendant entered under this contract, and built the house; and lived in it till the fall of 1820. He then removed out of the house; but requested one Carr to look to it, and keep the doors shut. The plaintiff took possession in the defendant’s absence. On this evidence, the judge nonsuited the plaintiff. L. H. Palmer now moved to set aside the nonsuit; and for a new trial. He said the plaintiff had lawful possession, with title. The prior possession of the defendant '-could not avail him. He had no title. No power of attorney from the heirs to W. Palmer was produced; and if it had been, the contract with the defendant was executory; and did not amount to a license to enter. (9 John. 35.) The conditions of sale were not performed ; and the defendant, therefore, had no title either in law or equity. D. Cady contra, cited Hyatt v. Wood, 4 John. 150. The case presented several other points, which were discussed by the counsel; but the above is sufficient to present the questions of law examined by the court. [MAJORITY — Curia, per Savage, Ch. J.] Curia, per Savage, Ch. J. The plaintiff, in right of his own wife, owned an undivided seventh part of the premises ; and being peaceably in possession, had a right to remain there, as against the defendant, unless he has shown such a title as will justify the authority exerted by him. lío power was produced on the trial from the heirs to yy. paimer. Nothing was paid upon the contract of pur* chase; and there was no stipulation about the possession. ipjmre is no evidence that W. Palmer was authorized to convey the plaintiff’s interest. Besides, a mere agreement to sell land does not constitute a license to the purchaser to enter. (9 John. 35.) And if it did amount to a license in this case, it is from one of several tenants in common ; and would not authorize the purchaser to turn out his co-tenants. The case of Hyatt v. Wood, 4 John. 150, is not an authority for this case. There the plaintiff was a mere intruder, if not a tenant at will to the defendant. The latter was considered by the court the true owner. He had purchased from the only person who showed any right; and had paid a valuable consideration. He was adjudged to have a title which would have supported a plea of liberum tenementum. The facts in this case are far different. The plaintiff shows an absolute title, in his wife, to a portion of the premises. The defendant shows no title which would have supported a plea of liberum tenementum ; nor any thing beyond a license, if so much. At most, he had but an equal right with the plaintiff, even if he had a deed from *W. Palmer. The latter could convey only his own right. As the plaintiff had never conveyed, or parted with his interest, his title to the extent of it, 'must be considered good. The defendant’s interest, if any, cannot be greater than the plaintiff’s. The defendant, therefore, had no right to dispossess the plaintiff. The nonsuit must be set aside ; and a new trial granted. Buie -accordingly.