Fogarty v. Kelly

Citations

• 24 Cal. 317

Syllabus

<p>Forcible Detainer—What Constitutes.—A naked avowal of an intention to keep possession, and actually keeping possession, do not necessarily constitute such force, or threat of force, as to render a detainer forcible, where there has been an unlawful entry, unless such an avowal is made in answer to a demand for possession by the party claiming to have been ousted, and is accompanied by some act or word of the party making the unlawful entry showing an intent on his part to maintain the possession by force.</p> <p>Same—Instructions to Jury.—F. brought an action against K. for an unlawful entry and forcible detainer. F. did not reside on the premises, and his only possession consisted in an inclosure and cultivation. K. went within the inclosure in the night time, erected a cabin, and, at some subsequent period of time, declared he would keep possession by force. The Court instructed the jury that if they found “ that the defendant entered upon the premises in the night time, during the hours of sleep, while plaintiff was in the actual and peaceable possession of the same, and that he took possession and avowed the intention to keep possession, and actually did keep possession, it was sufficient evidence of force to maintain the action of forcible entry and detainer, and the jury should find for the plaintiff.” Held, that the instruction was erroneous, as applied to the testimony of this case, because that portion of it relating to K/s intention to keep possession made no reference to any demand on the part of F. for possession, and because the instruction was framed as though it related to a question of forcible entry, and not forcible detainer.</p> <p>The case of Scarlett v. Lamarque, 5 Cal. 63, commented on and explained.</p>