
    COMMONWEALTH VS. GERSTLE.
    Where a Sheriff dispossesses a man from property not covered by the writ of possession, if he can re-enter peaceably, he can still hold possession.
    The law protects a peaceable, but not a scrambling possession.
    Certiorari to Quarter Sessions.of Luzerne County. No. 292 January Term, 1881.
    George Reiss, in 1870, owned a lot of ground, 96 feet in front, in Wilkesbarre, on which stood a building divided into three dwellings. He, on January 28, 1871, entered into three agreements with Jacob Hochberg, George Gerstle and John Froelich, respectively, to sell each 32 feet of this lot. As the building did not stand on all three lots, the men drew straws for choice of lots. Reiss expressly provided that the purchasers should make their own arrangement as to the building. Hochberg drew the eastern lot, on which there was no part of the house; and Gerstle drew the middle lot, on which was the eastern dwelling and part of the central dwelling. Hochberg occupied the eastern dwelling with the consent of Gerstle. The interest of George Reiss passed to Barbara Reiss; and, Hochberg falling behind in his payments, ejectment was brought, and conditional verdict was rendered, by which Hochberg was limited to a certain time to pay the consideration; he failed to do so, and a writ of possession was issued, under which the Sheriff sought to deliver possession of the house in Gerstle’s lot occupied by Hochberg. From the proceedings attendant •upon the execution of the writ of possession, a prosecution against George Gerstle for forcible entry and detainer took its
    
      The charge of the Court was as follows, per:
    Rice, P. J.
    Now, that judgment in ejectment vested in Barbara Rice the legal title and right of possession to this land described in the ■contract, and to the appurtenances.
    Upon the failure of Hochberg to pay the installments as fixed by the Referee, Barbara Rice would be entitled, by applying to the Court, to a writ of habere facias possessionem, against this land which had been in litigation between her and Hochberg. By virtue of that writ, the Sheriff went, it appears, by the testimony, not to the land described in the writ, but to the house occupied by George Gerstle, this defendant. He demanded the possession of this house. It appears from the testimony, that this house of Gerstle’s which the Sheriff sought to deliver possession of to Barbara Rice, under that writ against Jacob Plochberg, is not upon the land described in the writ. The Sheriff demanded possession, and, according to the testimony there was some conversation there between the parties. Finally, the Sheriff having told them that he should put them out, or something of that kind — that he had a writ to put them out — they left the premises and came up town to see their lawyer, leaving the Sheriff there. The Sheriff, then, as he says, put Barbara Rice in the house; then came out, followed by her, locked the door and gave her the key. The goods of Gerstle were left there as they were when he went there; they were not disturbed at all. As soon as Gerstle had seen his attorney, he returned to his house and found it was open. He went in and continued to live there the same as before. Now, at the most, he had been out of the house but a ■short time, and he returned, so far as the testimony shows, without breaking any door or without committing any violence, such as the act contemplates in the first clause of the section which we have read to you. So that if there was any violation of law, it was by reason of what occurred subsequently when Barbara Rice, the plaintiff in this writ, came, as she says, and demanded possession. She came within two or three hours after Gerstle’s re-entry, and, according to the Commonwealth’s testimony, she was repulsed violently driven away from the premises, and not allowed to enter. It is also alleged that threats were made. On the part of the defendant it is alleged that no more force was used than was necessary to put her away from the door.
    This, substantially, is the state of the case. You will observe that this writ, under which it is claimed that Barbara Rice had the possession, was a writ against Jacob Hochberg and not a writ against George Gerstle. If George Gerstle had any rights in this property they have not been litigated or decided so far as he was concerned; because it is a fundamental principle of law that no man’s property can be taken away from him except by due process of law; by which is meant that the man shall have an opportunity to be heard. In other words, property of A cannot be taken for the debt of B. Nor can the property, of A be taken in satisfaction of a writ of possession against B. But it is argued upon the part of the Commonwealth that this house, although not upon the land described in the writ, was really appurtenant to it and therefore passed to-Barbara Rice by virtue of the judgment in ejectment; that the-writ of possession was lawful; that it delivered, when executed, full possession to her; that being thus in the lawful, peaceable possession under that writ, her forcible, violent ejection by the defendant, as alleged by the Commonwealth, was an offense against the Act of Assembly. Now, as we said at the outset, this is not the place nor the time to decide the civil rights of these parties. What exactly may be their rights as, to this house cannot be fully decided in this case. Therefore, what we may saj' with regard to them will not be conclusive in an}'- other proceeding where the parties can have an opportunity to be fully heard.
    The Commonwealth has presented certain written points. In answering them we will give our views of the law as applied to this case. The Commonwealth’s points are as follows :
    I. That when Barbara Rice recovered against Jacob Hochberg, she recovered all his rights, title and interest under the contract sued upon.
    We answer that point in the affirmative so far as it concerns-the land described in the contract, and its appurtenances. Whether by virtue of her recovery she acquired a right to recover against George Gerstle can only be decided in the Civil Courts.
    II. That in the present case, the question is not as to the private rights of the parties, but as to the commission of the-public offence.
    As a general proposition that is correct. We have previously stated that to be the law, and we now state it to be so. The evidence as to what the relations of these parties were to this-property is only material as it tends to show the nature of theposession which each had or claimed.
    [III. That if the jury finds that the prosecutrix was put into-possession by the Sheriff, under and in pursuance of a writ commanding him so to do, and the defendant subsequently entered, and by force or threats or menacing conduct turned out the said prosecutrix, he is then guilty of a forcible entry.
    As a general proposition, gentlemen, this point is correctly-stated. If the prosecutrix was in the actual, peaceable, undisturbed possession of the premises, by virtue of a writ authoriz-' ing the Sheriff to give her possession, then if the defendant put her out of the possession by force and violence, he might and' ought to be convicted as he stands charged in the indictment ~ and he could not go behind the writ itself in order to ascertain-whether or not that did give to her the peaceable and rightful possession. That is, he could not go behind and inquire into-the judgment on which the writ was issued. But, gentlemen, as we have stated before, if the Sheriff has a writ of possession to deliver certain lands which have been recovered against A it does not authorize him to deliver possession to the plaintiff. of lands held by and in the possession of B, and which are not - the subject of the litigation in which the judgment was entered. In otíier words, in order to make this perfectly plain, if, during the absence of one of you from your home, the Sheriff having a writ against your neighbor to take from him the possession of certain land which was in his possession — should go to your land and tura your family out of possession, it would not be such .a delivery of possession as would prevent your re-entering peaceably,you woul have the right to hold your possession peaceably until your right of possession was fully tested and settled by the Civil Court.] (2nd Error.)
    
    [IV. That if the jury find that the defendant, with force and ;with a strong hand, or by, menaces or threats, unlawfully held and kept the possession of the premises mentioned in the indictment, then he is guilty of a forcible detainer.
    That point is drawn in the words of the Act of Assembly, and as a general proposition is correct. . We affirm it. But you will observe that in order to constitute the offence of forcible ■detainer there must be an unlawful holding and keeping of the possession against the prosecutor. To repeat the illustration ■which we have already given — if one of you upon your return 'home finds that some person has unlawfully and without the •slightest color of authority gotten into the possession of your house or land, and ypu get into the possission of it peaceably •and without committing any breach of the peace, then you would have the right to hold it as against him; because he, when he comes to assert his right to take it from you again, must show that he has the lawful right to the possession. Therefore, in order to constitute the offence of forcible detainer as distinct from forcible entry, the prosecutor must show that he has the right to take the possession from the person holding it.] .(3rd Error.)
    
    The defendant's counsel have presented the following points:
    [I. The house described in the indictment does not stand on the land described in the writ of possession. The Sheriff was, therefore, not authorized to dispossess Gerstle of the house ■standing on his land, and both the Sheriff and the persons assisting him were trespassers simply. As against mere trespassers Gerstle was lawfully entitled to maintain his possession, or being ejected, to re-enter. Having done this only, he cannot be convicted.
    
      We have substantially answered this point in our answers! to the others. In order that there may be no misunderstanding, we say to you that whatever the rights of Barbara Rice-may be to this house, whether or not it is appurtenant to the premises which she recovered against Jacob Hochberg, cannot be decided in this case. Whatever they are they must be-ascertained and decided in the Civil Courts. We say to you. that this house was not upon the ground which she recovered in the ejectment. Neither is there evidence here which would, warrant you in finding that it was appurtenant to the land. Therefore, under the testimony, it appearing here that the defendant re-entered peaceably and without committing a breach of the peace, or without breaking any doors or locks, he had" the right to hold the possession against Barbara Rice, and. therefore he cannot be convicted as he stands charged in this-indictment.] (4th Error.)
    
    [II. The Sheriff having left Gerstle’s goods no the premises, he never properly executed the writ of possession, and Miss-Rice was not in possession, and the possession of Gerstle was not terminated. He cannot, therefore, be convicted.
    As we have repeatedly said, this is an offence against the peaceable possession. It is an offence which is recognized by the statute, because the seizing of possession under a claim of right is calculated to result in breaches of the peace, and therefore it protects the party who is in the peaceable, quiet, and undisturbed possession. It protects him in his possession and does not allow the man even who has the greater right to possession to take it away from him. But this possession must be, as we have said, the peaceable, undisturbed possession. It is-not a mere scrambling possession. We say to you, therefore, gentlemen of the jury, that it appearing here in the testimony that this writ was not fully executed, that the goods of the: defendant, Gerstle, were left upon the premises undisturbed — - were not removed — that the defendant re-entered without committing a breach of the peace, he had a right to hold the posséssion evern as against Barbara Rice, and he cannot be convicted, as he stands charged here in the indictment. It was, under the testimony, then, not a peaceable and undisturbed possession vested ira Barbara Rice.] (5th Error.)
    
    [III. The agreements with Hochberg and Gerstle dated January 27, 1871, having expressly, remitted all questions concerning the houses to the parties purchasing, Barbara Rice retained no title to the houses except as they stood on the lands of the •individual vendees, and as the purchasers failed to pay purchase money. Hochberg’s land having no house upon it, Barbara Rice recovered nothing but the land. The house on Gerstle’s land passes with the land, and belongs to Gerstle.
    So far as the testimony in this case shows, gentlemen of the jury, this point is correct. Whether or not under certain circumstances there might be evidence to show that this house was appurtenant to this land we do not decide, but so far as the testimony in this case is concerned, the house did not belong to the land recovered by Barbara Rice against Jacob Hochberg, and therefore the Sheriff was not authorized to deliver possession ■of it to Barbara Rice.] (6th Error.)
    
    [IV. Barbara Rice’s possession, if any there was, was not lawful, and therefore Gerstle cannot be convicted. As we have already said, gentlemen of the jury, in order to convict there must be a peaceable possession. It is not always a lawful possession which will be protected. It is a peaceable, undisturbed possession which is protected, not a mere scrambling possession. For example, if there is a dispute about the title to lands and A, is actually in the peaceable and undisturbed possession of land; even though he has not the better title to it, that will not permit B, who has the better title to go and throw him out by force and violence; but the law says to B, go into the Civil Courts and establish jmur rights, and the Civil Court will give you the process which is necessary to put you in.
    In the case of a mere scramble between parties for the posession, the law will not interfere and protect one in his possession as against the other. It will leave them where they are and let them settle their rights under the process of the Civil Courts.] [yth Error.)
    
    • [You will observe that from my answers to the point, I have substantially said tha there can be no conviction of the defendant. We say, therefore, distinctly, gentlemen of the jury, that under the whole evidence there can be no conviction of the defendant as he stands charged in the‘indictment.
    You have, however, the right to pass upon the question of costs.
    You may say whether the defendant, the prosecutor, or the county shall pay the costs; or you may divide the costs between the prosecutor and the defendant, naming them in such proportions as you may deem proper.] (ist Error.)
    
    
      A Darte, Jr., and A. Ricketts, Esqs., for Commonwealth,
    argued that the Court cannot direct a verdict in a criminal case; Kane vs. Commonwealth; 89 Pa. 522. It was the intention of the parties that the house should be appurtenant to the Hochberg lot, as indicated by the acts of the parties when buying; and when such is the intention, land may be appurtenant to land; Lazaretto Road, 1 Ash. 417; Hill vs. West, 4 Yeates 142; Blaine vs. Chambers, 1 S. & R. 169; Pickering vs. Stapler, 5 S. & R. 107; Swartz vs. Swartz, 4 Pa. 353; Murphy vs. Campbell, 4 Pa. 480; Whitney vs. Olney, 3 Mason 280.
    S. J. Strauss, Esq., contra,
    
    argued, the Court may direct an acquittal; Pauli vs. Commonwealth, 89 Pa. 432. The house was not appurtenant to the Hochberg lot, 3 Washburn’s Real Estate 340.
   The Supreme Court affirmed the judgment of the Quarter Sessions on April 24th, 1882, in the following opinion:

Per Curiam.

It is a very clear proposition and decisive of this case, that if the Sheriff has a writ of possession to deliver certain lands which have been recovered against A, it does not authorize him to deliver to the plaintiff, land held by and in the possession of B. The house described in the indictment did not stand on the land described in the habere facias. The Sheriff was not authorized to dispossess the defendant. On the undisputed facts, the defendant was entitled to a verdict, and the Judge had a perfect right so to instruct the jury.

Judgment affirmed.  