Forcible Entry and Detainer — Indictment — Separate Counts — General Verdict — Tenancy.
1. Where a tenant in possession, through intimidation or indifference, did not forbid the entry of parties taking possession, and the landlord learning of the entry, went the same day and ordered them off, and they refused to go, and plowed up the land, the entry became forcible after being forbidden, if not so at the beginning.
2. Separate indictments, and at different terms, may be treated as different counts in the same bill, if germane.
3. Where the transaction, alleged in different counts, was one and the same, the possession in one stated as the possession of the landlord, and in the other the possession being stated as that of the tenant, the two counts were not repugnant, but were a mere statement of the same transaction to meet the different phases of proof; and the court properly refused to quash, or to require the Solicitor to elect, or to arrest judgment.
4. While the possession is sub modo in the tenant, yet it remains in the landlord certainly to the extent that he can warn off trespassers and intruders.
5. Where there are two counts, a general verdict of guilty is such verdict as to both, and will sustain the judgment, even though there was error in the instruction as to one, provided the other was unexceptionable.
CLARK, J.
The indictment consisted of two papers pinned together and returned into court as one bill, the two charges being numbered, first count and second count. We see nothing objectionable in this. Even if they had been returned as separate indictments and at different terms, they could be treated as different counts in the same bill, if germane. S. v. Perry, 122 N.C. 1018.
The charge in the first count was forcible entry and detainer upon the premises in the peaceable possession of Caroline Haroldson, and the second count was for the same offense upon the premises in possession of Betsy Black. The transaction alleged was one and the same, Mrs. Haroldson being the landlord and Betsy Black her tenant. The court properly refused to quash, or to compel the solicitor to elect, or to arrest judgment, for the two counts were not repugnant, but "a mere statement of the same transaction to meet the different phases of proof." S. v. Harris, 106 N.C. 682, and numerous precedents cited at page 686. In S. v. Eason, 70 N.C. 88, the indictment for forcible entry and detainer was sustained, though there were four counts laying the possession in different persons.
The State showed by the testimony of the prosecutrix that she was the owner and in possession of the premises, and had been such for seventeen years. It was not necessary to prove this much, as (737) proof of peaceable possession (by one not a mere intruder or trespasser himself) would have been sufficient, but we do not see how the defendant was hurt by proving more than was necessary.
The court charged the jury, "If the defendant went upon the premises, then in possession of Betsy Black and Tom Black, peaceably and by their permission, and their possession was as tenants of Mrs. Haroldson, and afterwards Mrs. Haroldson, the landlord came, and in the presence of the tenants, ordered the defendants from the premises and they refused to go, and their numbers or conduct was such as was calculated to put her in fear, they would be guilty. The possession of the tenant was the possession of the landlord." In this there was no error. The possession is sub modo in the tenant, but it remains in the landlords certainly to the extent that he can warn off intruders and trespassers. The defendants were not mere visitors on premises by consent of the tenant, but took possession, plowing the land up under claim of ownership against the landlord in possession. They could not avoid an action of ejectment of this forcible way of taking possession. The tenant could not give such intruders the right of possession by actual attornment, still less could he do so, as here, by silence that was caused by intimidation, as the tenant stated on the direct examination, or by indifference, as intimated on the cross-examination.
The prosecutrix was not at the precise point of entry at the identical moment; she could not be everywhere, but went the same day, on learning of the entry, and ordered the defendants off, and they refused (738) to go, and plowed up the land. The entry became forcible after being forbidden, if not so in its beginning. S. v. Webster, 121 N.C. 586; S. v. Lawson, at this term, and cases there cited. The entry of three persons, their remaining and plowing up the land after being forbidden by the landlord, a woman, was sufficient force. S. v. McAden, 71 N.C. 207; S. v. Armfield, 27 N.C. 207; S. v. Pollock, 26 N.C. 305, and other cases cited in S. v. Lawson, at this term.
There were two counts and a general verdict on both, which is a verdict of guilty on each ( S. v. Cross, 106 N.C. 650), as the defendants did not exercise their right to require a separate verdict on each count. There being no exception as to the other count, the verdict thereon would have sustained the judgment, even had there been error in the instruction on this count, it being surplusage. S. v. Toole, 106 N.C. 736, which has been cited and approved in S. v. Brady, 107 N.C. 882; S. v. Hall, 108 N.C. 776; S. v. Edwards, 113 N.C. 653; S. v. Perry, 122 N.C. 1018, and in other cases.
No error.
Cited: S. v. Elks, 125 N.C. 605; S. v. Conder, 126 N.C. 988.
(739)