#### The *People, ex*relat. *Brinkerhoff, against Nelson.*

An indictment,. ¿n^ef'the^stat6*eíSw’|!:C¿ forth jnStheSpurview ■whether the es* tate of the re, jatorbe a *free-*tie tr^e s"dtr allegation as to the relator1 by Sndaut *c?nnot íy11 ?bowingc<a lie'may 'contri Lyrwhichthe°ret to “sjiow a title in himself.

a purchaser unsherii^s^ieAas xióright to enter <ra-"tie píe mises, unless the/are vacant. deliver *the*legal. possession; but tainr?ictuaióposi *ttfier’maítrt*action b“ eject! nicnt. ■ --

TEMS wií an-' indictment for. forcible entry and detainer; proceedings. before the justice' were pemóvedúnto^this. c'ourfr fey *certiorari;-,*and the‘traverse was' tried at- the *-Dut'cHeSs*in *August,*1'81-S, before Mr. Justice.Fan' *Ness.*The-. inquisition: taken before'a justice Of the peacé bf *'Poughkeepsie,*found, “-that *Stephen Brin/cerholJ'oi Poughkeepsie,*blacksmith, , . ' . • ’.v - ; *.. long*since lawfully and peaceably was- possessed-of; and .in,, one rness'iafe’ wlta tae aPf)Ul'tenan(ies>ln *Poughkeepsiépaiqr.esaia,*in the county aforesaid, and his possession so continued, until *^*dold Nelson^*late of. the. town of • *Poughkeepsie,*labourer, M. the 8th *of M'ay*instant, with strong hand and armed power, inf9., the messuage aforesaid, with .the appurtenances, afpresaid, did-enter, and.him the .said *Stephen*thereof jfiáposi^ssed', and with, strong hand/expefled ; and him.,,the. said *Stephen,*so dispossess»; ed and' expelled from the. said messuage, with the appurtenances. aforesaid, .from tlip, said 8th-day of *May-*until the taking of; this inquisition, with like strong hand and armed power ,did. \ *■*. ‘ - • - . * s .* i kéep OÜt,”’ &C.' " ' . ’

*.*At the trial, the relator -provea that‘lie ana hfsfamrly'haa lived.' in the house. ‘áboüt two years!, and that, In *'Man,*1815, .■ » < •, ; • • • *-*• *f*.*• *Benjániiñ Merrick, 'Arnold Nelson, John Lewis', AndCMpp Rayniond,*who; was a deputy sh.er iff, were at thehqusc;with‘wagon9 -with furniture,, which they were'puüiag into the.' houses when, *igrinkefhoffi*who* 'had- been absent,., came' home, and. forbad, Nelson.from taking-possession,'or entering thehoiisC, or'doing any thing on the premises *.¡'Raymond,*thedepqty sheriff, arrested *Brinkerhoff on,■&'pa; sa-.,*and took him' ¿why. Mrs, Brihlcer*■hoff.*was. in., the' house, and' staid, there; some timet There "were. no arms or. *force used, nor*any,violence.' The witness knocked fb'f the door", and was asked-to walk in. . The relator was absent,- and-His. .wife in bed. - The business appeared to have been árranged by the'-deputy sheriff, who took *Brinkerhoff*on the . execution; and, he delivered all the possession hp supposed he. liad a.4igh.t to do, by law, "to *Herrick,*who-then -gave. possession to Baldwinand -he delivered the possession;to. *Nelson,*who staid there.

*341The defendant moved to quash the -indictment, for various defects, and particularly, because the interest of - the relator in the premises was not set forth; but the judge decided that the der fendaiit could only take advantage of any insufficiency in the indictment, on a motion in arrest of judgment. >-The defendant offered in evidence a judgment of this court, in' favour of *Leonard Davis,*against *Brmkefhoff,*and a *fieri fiadas*issued thereon, under which the premises in question were- sold at the sheriff’s sale to. *Herrick,*and a deed- executed to hiffi 'by the sheriff; and to proye that *Raymond,*the deputy sheriff who. made the sale, on receiving the money, made the entry on the' premises, and delivered the possession to Herrick, as stated by the witness of the plaintiff; and that *Herrick*accordingly entered, and which was the entry complained of by the relator. The evidence thus offered’was overruled by the'judge, who directed the jury, to find a verdict against the defendant, and the jury found accordingly- t ■' ■ ' ;V

, A motion was made, *1,*In arrest- of; judgment, and, 2. For a new trial; because the judge improperly overruled the' evidence offered by the defendant to show-a'tide in himself, and. a right to enter.,

*J. Tattmadge,*for the defendant,

contended, that the indictment contained no description of any estate in the relator. The tenant must allege that he was disseised, and’for that purpose he ought to set-forth his seisin, or ther'nature of his estate, go that it may appear that- he ujas .seised at the time,* The indictment is, in this respect, clearly defective. 1

■ Next, the evidence offered by the defendant ought to have been received, The deed of the sheriff' showed the plaintiff’s right of entry. The sheriff, had authority to transfer the possession to the purchaser. It is his duty to deliver the possession to him, if required; otherwise, few persons would be willing to become purchasers at a sheriff’s sale. There are no *English*adjudications on this point, because,'in *England, the*fee of the land is never sold on execution.. In *M'Dougall*v. *Sitcher.**†***the court held,, that a purchaser of real estate, under "a *fierifacias,*might enter, and take possession in a peaceable manner. After-the sale of the land to the sheriff, the tenant becomes, *quasi,*a-tenant at will to the purchaser.‡

*342OaklyContra-,

* The -sheriff has no'aüthbrity 'to deliver" thb áétuaí possession.-:;ori 'He'cárirmt turn the tenant but,.' and put the vendeb.jn,. but-the purchaser must resort to his ae-^ .tionof ejectmént.*

- Then*.-as tb the sufficiency, of this-indictment, ; In the-, case of' *The People*v. *Leonard.**†***the Court say,, that on an indictment for' ft forcible entry and;-deihin"er, the title " to, the premises does not ebme in -question; ahd-it'Is enough to entitle'fhe relator'to'judg' jnent-,. if hé"shows that he Was' in peaceable'possession; at. the. time of thevd'efendant’s forcible, eritry. There need be no more alleged-in the indictment than is.sufficient .ib énableithe„pláin-? tiff to recover; and that-is a peaceable possession in.- him at the. time; There is, in *Wentworth's Entries,**‡***a precedent of tins' fornnof-indietment, ' '■

*PrRvggles.,_*in reply,

observed, that in *Hyatt v.*Wood,§*Spencer,*J., in delivering the opinioh of the court,-layé'it down, that' no man can recover, upon a claim of right’to property, against another,, whose rights to the subject matter .-áre- superior to' those of. the person so .claiming damages for a'violation of hits sup? posed rights.; It is true, that was a civil- action; but the principle is equally applicable to this case^^ ^ s - ‘ ■ .

It is admitted,’that possession is’evidence of seisin; but-that does not,dispense with the necessity of alleging a seisin. As, in *trover,*the plaintiff must, allege ft conversion, though a demand shdreffisal-may be sufficient evidence of-it»1 . ■;'

*

*People*v. *Shaw,*1 *Caines,*125 *People*v. *King, 2 Caines,*98. 1 *Ld.*Raym. 610 *4 Com. Dig. Forc. Ent. and Del. (D*4.) 3 *Bac. Ab Forc. Ent. and*Det. (E.)

†

1 *Johns Rep.*42.

‡

 Jackson, *ex dem. Kane,*v. *Sternbergh,*153.

*

*2 Shower,*85. *3 Keble, 243. 3 Term Rep. 295. 2 Wms. Saund. 69. c. n. 2 Tidd's Pr. 960. Bull. N. P. 104.*

†

*11*Johns Rep. 501.

‡

*Went.*Pl. 148.

§

*4 Johns. Rep. 450.*

Spencer, j.,

.delivered1 the opinion of the .court.. The de-- - fendant-moves, in arrest Of judgment, and for a-'ne-w trial, on the' ground,'.'that the. evidence offered on. his part, which went to . show a title in himself to the-premises, was overruled.

The’inquisition does hot state, that *Brinkefhoff*was either seised of the premises, ór that he had a term of years therein* yet to come' and un'espired,: it states; only, that *Stephen Brin-" lierhojp, ot• Poughkeepsie,*aforesaid, blacksmith, long since lawfully,, and-peaceably, was possessed of, and in, one messuage* .with the appurtenances in, &c,,.and his possession so-continued, until *Arnold*Nelson, late of, &c„ bn the 8th day of May, instant,, with strong hand and armed power,, into the messuage aforesaid',. with the.appurtenances aforesaid, did enter, and him., the said *343*Stephen,*thereof dispossessed,/and. with strong hand expelled,’’ &c. , ■. • ■' '

There Can be no doubt that this indictment is. bad in substance. The 6th section of th.e statute (1 N. *R.*L. 98.) to prevent' forcible entries and detainers, enacts, that the a'ct “ shall extend as well to tenants for years, and guardians, as to such as have estates of freehold.” The statute .of' 21 *Jac.*ch. • 15., extended the remedy of the former statutes of forcible entry and detainer, to lessors for years and copyholders; and- in the case of the *Queen*v. *Taylor, (7 Mod.*123.,) where-the indictment was upon the statute of 8 *Henry*VI., ch. 9.,' it did not allege, that the party had been seised,'and disseised-by force! and, upon a motion to quash the indictment, *Holt,*Ch. J„ with the concurrence of the whole court, after stating, the extension of the Statutes, by the.statuie of 21 *James >*ch. *1.5.,*observes, V£ the present-case is upon the statute of *Henry:*VI., upon which you must always.allege a freehold and seisin in somebody,.and if it be an entry upon a lessee for y.Cars, you must, say, the-entry was made into the freehold of A., in the possession of 13.) and so he disseised A,; and, of necessity, there must be á disseisin of the freehold laid,” The genera! position of Lord *Holt*is warranted by all the cases, that- the- indictment -must set forth a seisin, Or possession, within thé purview of the statute. <" The party must be shown to be dispossessed, of a freehold, ordo be disseised of a term of years, .yet to come and unexpired. Tenants at. will, of sufferance, are not protected •by the statute, and yet, if it were not essential to allege the estate, and bring it within the reach of the statute, tenants of-that description might avail themselves of -the remedy afforded by the statute, contrary to its plain intendment. It is unnecessary • to cite further cases from *English*reports. The point has been. decided in this court repeatedly. *(Shaw*ads. *The People,*1 *Caines,*125., and *The People*v. *King,*2 *Caines.,*98.) In .the last casé, the late Chief Justice mentions, also,- the case of *Beebe ■*ads. *The People,*not reported.

As to the second point, the case of *The People*v. *Leonard,*(11 *Johns. Rep.*509.,) decides, that the right and title of the defendant cannot be gone into ; that the statute was; made to prevent persons from doing themselves right by force. As it respects the relator’s title, I do not mean to.be understood, that be is to give precise technical proof, that, he lia.s a- seisin of a *344freehold, ora term for years"; any evidence, from which eithef Qf tjjggg. estates may be inferred, would be sufficient, Hut, upon the traverse, he must show every material allegation in the iridictmeñt to be true ; and the estate, we have seen, is material, andit,necessarily must be‘.proved. Whatever must be proved, may be disproved, and it follows, naturally, that, though the defehdant shall hot justify the force, by showing a title in himself, derived from an independent source, or even from the relator himself, he may Controvert the facts by which the relator attempts to make out his estate,, and may show that lie has riot such an estáte as1 would enable him' to riiaintain the prosecution. It was. urged, on the argument, that it' appearing: thát *Merrick*had purchased the preinises, ■ upofi *&;fi. fa.*against *Brinkerkoff^*he had: a right to enter under, that purchase,• aridvtah:e possession. Had the premises been-vacant, I agree that he might have entered, without any danger'from the. statute;; but they were not vacant; and, notwithstanding what fell from Mr. Justice *Livingston,*in *MMougall*v. *Siicker,:(1 Johns. Rep.*43.,) I am decidedly of. the opinion that the entry was unlawful. .

*Tidcl*says, speaking of the *elégit,*(vol. 2. p. 941.,)' it was formerly usual for the sheriff to deliver actual possession of a moiety of the lands, but that he now only delivers legal possession, and, in order to obtain actual possession,, the plaintiff must proceed by ejectment; and he states the practice-to be the samp upon an *extent.*(2 *Tidd's Pr.*950.) ' Our practice is,. not. for the sheriffi to deliver possession ; he has no authority for. doing so ; he' is commanded merely to sell; and the purchaser has .Aó inore right to éntér after his purchase than he has tó ente? •upon any other lands in the actual possession of another, and :tb-which-he. has’title.,; ' .

Indictment quáshédi