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Ives v. Ives

13 Johns. 235 Court N.Y. Sup. Ct. English

Contents

Majority

p. 235
Ives against Ives.

Headnote

An agreement to convey, containing words of bargain and salé in. prasenti, does not transfer the title.
An agreement' to sell land does not import a license to enter, but, at most, gives an implied permission to occupy as tenant at wM.
If a person having title to land enter with force, he is not liable to an action of trespass-.
THIS was an action of trespass, guare clausum fregit, for breaking atjd entering the dwelling house of the plaintiff, and tearing out the doors and windows, and pulling down the oven and chimney, of the house. The defendant pleaded, 1. Not guilty. 2 Liberum tenementum. 3. That the defendant committed the supposed trespass by the license of the plaintiff.
To the second plea, the plaintiff replied, that, by a certain agreement, in writing, the defendant bargained and sold the premises to the plaintiff, and thereby agreed to give him a good and lawful deed of the same j by virtue of which agreement, the
p. 236
plaintiff was possessed thereof, and continued possessed there- , nptil, &c. ' To the third plea, the. plaintiff• replied, de inju~ ria suapropria* ■
To the replication to. .the second plea there was a general demurrer, and,joinder in demurrer, which-',was, submitted.to the court without argument.'-,

According to the decision,s.in Jackson, ex dem. Ludlow, v. Myers, (3Johns. Rep, 388.,) and Jackson, ex dem. Green, v. Clark, ( 3 Johns. Rep. 424 .,) the agreement, set forth in the plaintiff’s replication, although'containing, words of bargain and sale, in prmenti, impqrts, in law, nothing moré than an agreement to convey, as- an executory contract, and does not,, ipso facto, transfer,-th? title.'

By. the ■ decisions in Suffern v. Townsend, ( 9 Johns. Rep. 35 .,) and Cooper v. Stower, ( 9 Johns. Rep. 331 .,) a contract to sell does hot, in itself, contain , a license to enter; or, at most, it gives an implied permission to occupy-as tenant at wif merely.

It is also well settled, that the person having title,that is,. having a right to enter,, is not. liable, inan.action of trespass, for entering with force, although liable to indictment for a forcible entry. Wilde v. Cantillon, ( 1 Johns. Cas. 123 .) Hyatt v. Wood, ( 4 Johns, Rep, 150 .) The defendant is entitled to judgment.

Judgment for the defendant,

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