Manning v. Brown

Alvey, J., delivered the opinion of the Court. The declaration in this case contains two counts; the first in trover, alleging that the defendants converted to their own use, and wrongfully deprived the plaintiff of the use and possession of his goods, which are described; and the second in trespass, for breaking and entering the dwelling-house of the plaintiff, and there seizing and carrying away his goods and chattels, also described. That the first count is in trover, it is only necessary to refer to the Code, Art. 75, sec. 22, prec. 29; and Bull & ⁵⁰⁸ Leake’s Prec., p. 290 ; see also the cases of Burroughes vs. Bayne, 5 H. & N., 296, 310, and Pillot vs. Wilkinson, 2 H. & Colt., 72, 82. The defendants pleaded, 1st, That they did not commit the wrongs alleged; 2ndly, That the defendant Corrilla was seized of the premises mentioned in her own right, and that she entered thereon and removed therefrom the plaintiff’s goods and chattels, as of right she could do; and, 3rdly, That the defendant Corrilla was seized of the premises mentioned in her own right, and that the other two defendants, by her direction and at her request, entered the said dwelling-house, and removed therefrom the goods and chattels of the plaintiff, as they lawfully did and might do.

As to.these two latter pleas, if they were intended to be pleas of liberum tenementum, as we suppose they were, they are radically defective, and would have been so declared on demurrer; for, as will be observed, they do not state that the defendant Corrilla was seized of a present freehold estate, or, indeed, of any designated estate whatever. For aught that appears in these pleas, her estate in the premises may have been quite subordinate to that of the plaintiff; and, as special pleas in bar, they fail to give the plaintiff any color whatever, which would have rendered them bad on demurrer. 1 Chit. Plead., 504; Hunter vs. Hatton, 4 Gill, 125 . According to the authorities, liberum tenementum would be the appropriate plea in a case like the present. “Although in general liberum tenementum may be given in evidence under the general issue of not guilty, yet if the defendant, in faking possession of his close, &c., has necessarily injured or destroyed or removed goods, the property of the plaintiff, it is proper to plead liberum tenementum justifying such acts as to the personalty, and the general issue is not sufficient.” 1 Chit.

PI., 505. But as the question of the sufficiency of these pleas was not raised by demurrer or- ⁵⁰⁹ motion in arrest, we shall treat them, upon the issues joined thereon, as involving the question of the right to immediate possession of the premises by the defendant, Corrilla, as against the plaintiff, and her justification, and the justification of those acting under her authority, for entering the premises and removing therefrom the goods of the plaintiff; but, of course, though pleaded to the declaration generally, they are applicable ■ only to the second count of the narr. The facts of the case are these : Jesse Manning, by his will, devised to his wife for life certain real property, consisting of lots and tenements in the town of Westminster, Carroll County; and after the death of the wife to his daughter Corrilla Brown, wife of William S. Brown, for life. The plaintiff is a brother of the defendant Corrilla, the devisee; and during the life of the mother, the first devisee for life, the plaintiff, who lived with his mother, was lodged, and, by request of the mother, occupied a room in one of the houses devised to her for life.

This room he occupied,with his furniture, at the time of his mother’s death, which happened sometime in the spring of 1876. After the death of the mother, Corrilla, the succeeding devisee for life, demanded of the plaintiff the surrender of the room occupied by him, but which he refused. Whereupon William S. Brown, the husband, of Corrilla, and Hall Brown, his brother, by the direction and authority of Corrilla, entered the room thus occupied by the plaintiff, without his permission and against his protest, and took therefrom the various articles of personal property belonging to the plaintiff, and deposited them on the public street of the town, where they remained for some time, until some portion of them were, because the town authorities objected to their remaining on the street, removed to a stable near by, where they remained at the time of the trial; the goods thus removed being all the while subject to the control and ownership of the plaintiff. ⁵¹⁰ This is the proof on the part of the plaintiff, and there is no evidence whatever that there was any want of care in the removal of the goods, or that any injury was done them more than was necessary for their removal and deposit. On this proof, the Court was requested by the defendants to instruct the jury, that, under the pleadings in the cause, if they found the facts as we have stated them, their verdict should be for the defendants; which instruction was given, and in the correctness of which we entirely concur.

There is nothing in the facts stated, and which have been found by the jury,