Opinion
Argued January 27, 1876
Decided February 22, 1876
O.W. Chapman for the appellants.
G.W. Hotchkiss for the respondent.
The facts that the plaintiff's wife owned the fee of the land upon which the house stood, and that she resided there with him, are not, necessarily, inconsistent with the plaintiff having such a possession of the house as would entitle him to maintain an action against a trespasser for forcibly entering it. The wife had the right to confer upon her husband the possession and control of the property; and if she did so, he was entitled to defend such possession and to maintain an action of trespass against a stranger who should unlawfully and forcibly disturb him in the enjoyment of it. In one sense, it is true, his possession would be hers; that is to say, it would not be hostile to her title, and would inure to her benefit as that of a tenant inures to the benefit of his landlord; but, nevertheless, he would have the right to protect it against a trespasser.
The question in this case is, simply, whether facts were proven which would have justified the jury in finding that the wife had put him in possession of the property. If she had, the judge erred in instructing the jury that the plaintiff was not entitled to maintain an action against the defendants for breaking and entering the house; and the General Term were right in ordering a new trial.
It appeared in evidence that the plaintiff had built the house on his wife's farm; that he moved his family into it, consisting of his wife and several children, and had lived there with his family for six years; during which time, he testified, without objection, that he had been in possession of the house and had control of it. It further appeared that he operated the farm in his own name, owned the stock upon it, cultivated it, and provided for his family.
We think that from these facts the jury might well have inferred that his wife had put him in possession of the farm, and consented to his building upon and occupying and cultivating it in his own name and on his own account, for the support of himself and the family. This would be a sufficient possession to entitle him to maintain an action against a trespasser for breaking and entering the house. The plaintiff was the head of the family; it was his duty to protect and maintain it, and the duty of his wife to live with him. Under the facts of this case it is more reasonable to attribute her presence in the house to a compliance with her marital obligations than to an intention to retain possession of the property.
The order of the General Term should be affirmed and judgment absolute rendered for the plaintiff, with costs.
All concur. MILLER, J., not sitting.
Order affirmed, and judgment accordingly.