FORCIBLE ENTRY OR DETAINER. A forcible entry or detainer consists in violent ly taking or keeping possession of lands or tenements, by means of threats, force, or arms, and without authority of law. Comyns, Dig.; Woodf. LandL & Ten. 973; 2 Bish. Cr. L. 489.
Such an entry as is made with strong hand, with unusual weapons, and unusual number of servants or attendants, or with menace of life or limb ; an entry which only amounts in law to a trespass is not within statutes relating thereto. Smith v. Reeder, 21 Or. 541, 28 Pac. 890, 15 L. R. A. 172.
To make an entry forcible, there must be such acts of violence, or such threats, men aces, or gestures, as may give reason to ap prehend personal injury or danger in stand ing in defence of the possession: But the force made use of must be more than is im plied in any mere trespass ; 8 Term 357; Com. v. Dudley, 10 Mass. 409 ; Pennsylvania v. Robison, 1 Add. (Pa.) 14 ; Tayl. Landl. & Ten. § 786.
Driving the tenant from the premises by deadly weapons and an array of numbers is a forcible entry ; State v. Smith, 100 N. C. 466, 6 S. E. 84. But it is sufficient that it was made against the will of the individual when in peaceable possession, without actual force; Oakes v. Aldridge, 46 Mo. App. 11; Meriwether v. Howe, 48 Mo. App. 148; Wylie v. Waddell, 52 Mo. App. 226.
Proceedings in case of a forcible entry or detainer are regulated by the statutes of the several states, and relate to a restitution of the property, if the individual who complains has been dispossessed, as well as to the pun ishment of the offender for a breach of the public peace. And the plea of ownership is no justification for the party complained of ; for no man may enter even upon his own lands in any other than a peaceable manner. Nor will he be excused if he entered to make a distress or to enforce a lawful claim, nor if possession was ultimately obtained by en treaty ; Woodf. L. & T. 741, n.; Langdon v. Potter, 3 Mass. 215; State v. Johnson, 18 N.
C. 324 ; 8 Term 361; but, contra, it has been held, that an intruder in quiet possession of land may be forcibly expelled by the owner ; Smith v. Reeder, 21 Or. 541, 28 Pac. 890, 15
L. R. A. 172 ; Canavan v. Gray, 64 Cal. 5, 27 Pac. 788. If the owner_is guilty Of a breach and trespass on the person of the in truder in taking possession of his land, he is liable for that, but his possession is lawful, and an action of trespass qua/re clausum is not maintainable against him ; Overdeer v. Lewis, 1 W. & S. (Pa.) 90, 37 Am. Dec. 440 ; Rich v. Keyser, 54 Pa. 86. This follows the English doctrine as expressed by Parke, B., that, where a breach of the peace has been committed by a freeholder who, in order to get possession of his land, assaults a person wrongfully holding possession of it, although the freeholder may be responsible to the pub lic for a forcible entry, he is not liable to the other party ; and in an action brought against him, it is a sufficient justification that the tenant was in possession against the will of the owner ; 14 M. & W. 437. See 4 Am. Law Rev. 429. A lessee never in possession can not maintain unlawful detainer against the lessor, either at common law or statute ; Long v. Noe, 49 Mo. App. 19. A change of posses sion pending a suit for forcible entry and de tainer does not affect the right of recovery ; Daggitt v. Mensch, 141 III. 395, 31 N. E. 153.
Upon an indictment for this offence at com mon law, the entry must appear to have been accompanied by a public breach of the peace ; and, upon a conviction for either a forcible entry or detainer, the court will award resti tution of the premises in the same manner as a judge in a civil court, under a statutory proceeding, is authorized to do upon a ver dict rendered before him ; 1 Ld. Raym. 512; 8 Term 360 ; Cro. Jac. 151; Al. 50.
Neither title nor right of possession is at issue, or can be made an issue, in an action of forcible entry and detainer ; Sheehy v. Flaherty, 8 Mont. 365, 20 Pac. 687.