dence produced on the trial, as it comes to us, was not sufficient to so prove them: State v. Patterson, 7 Ired. 70; 45 Am. Dec. 506; State v. Wright, 6 Jones, 25; State v. Robertson, 86 N. C. 628; State v. Wilson, 93 N. C. 608.

The court should have told the jury that the evidence produced was not sufficient to warrant the conviction of the defendant, and to render a verdict of not guilty. As it did not, there is error, and the defendant is entitled to a new trial. To that end, let this opinion be certified to the superior court according to law.

CRIMINAL LAW-DISORDERLY HOUSE - WHAT CONSTITUTES THE OFFENSE. — A house is disorderly which tends to public annoyance, although only one person may have been actually disturbed: Commonwealth v. Hopkins, 133 Mass. 381; 43 Am. Rep. 527.

STATE V. Mills.

[104 NORTH CAROLINA, 905.]

CRIMINAL LAW - FORCIBLE ENTRY. -To constitute offense of forcible entry or forcible trespass, there must be either actual violence used, or such demonstration of force as is calculated to intimidate or alarm, or as involves or tends to a breach of the peace. Hence the offense is not established by proof that the defendant went to a house occupied by the plaintiff, said it was his, that he intended to take possession of it, and, though forbidden by plaintiff to enter, entered such house, whereupon the plaintiff, to avoid a difficulty, went away, leaving the defendant in possession.

INDICTMENT for forcible entry. At the trial the jury returned the following special verdict: "One Perry Bomer was the tenant occupying the house of T. T. Ballinger and others, and about the first day of January, 1889, went to said Ballinger, and told him that he was going to move, and that he (Ballinger) might come and take possession of the house. Ballinger went to the house, went in, and began nailing down the windows. While he was thus engaged in the house, the defendant, W. E. Mills, came, accompanied by an old negro man, who carried some things Mills intended to put in the house. Mills came to the door of the house, and said to Ballinger, "This is my house, and I mean to take possession of it.' Ballinger forbade Mills to enter, but Mills went into the house. The reason Ballinger allowed Mills to go into the house was to avoid a difficulty. The defendant said that, as he entered the house, one Garrison, from whom Ballinger and another had

purchased the house, was, or had acted, a damned rascal; that it was his (defendant's) house, and he was going to have it. Ballinger made no effort to keep Mills out, except to forbid him, in a quiet way, to enter. The negro man accompanied Mills in, and Mills said to the negro, 'Bring those things in here and throw them down,' and the negro did so. Mills did not curse Ballinger, or threaten to use any violence,

had no weapon. In reply to what Mills said about Garrison, Ballinger told him that if there was any trouble between him and Garrison, they could fight their own battles.' Ballinger then went away and left Mills in possession." The trial court was of the opinion that the special verdict was equivalent to a verdict of not guilty, and directed the discharge of defendant, and that the prosecutor pay the costs. The state thereupon appealed.

Attorney-general and W. J. Montgomery, for the state.

J. A. Forney, for the defendant.

CLARK, J. To constitute the offense of forcible trespass, there must be either actual violence used, or such demonstration of force as was calculated to intimidate or alarm, or involve or tend to a breach of the peace: State v. Pearman, Phill. (N. C.) 371. The show of force must be such as to create a reasonable apprehension in the adversary that he must yield to avoid a breach of the peace: State v. Pollok, 4 Ired. 305; 42 Am. Dec. 140. In the present case, there was neither display of weapons, threats of violence, nor unusual numbers. There was nothing said or done which should have intimidated or overawed a man of ordinary firmness.

In State v. Covington, 70 N. C. 71, Bynum, J., states the law so clearly, and in a case so like ours, that it is only necessary to cite it. In it he says that bare words, however violent, cannot constitute the offense, and though words accompanied by display of weapons, by numbers, or other signs of force, are sufficient, yet the demonstration of force must be such as is calculated to intimidate, or create a breach of peace, and adds: "The law does not allow its aid to be invoked, by indictment, for rudeness of language, or even slight demonstrations of force, against which ordinary firmness will be a sufficient protection." This case has been cited with approval in State v. Lloyd, 85 N. C. 573. In State v. Hinson, 83 N. C. 640, which was chiefly relied on by the state, the act of riding into the yard of a house occupied only by a

woman, after being forbidden by her, and remaining there cursing her, was held such demonstration of force as was calculated to intimidate or put her in fear.

It is true that here defendant left to avoid a breach of the peace, but the demonstration of force was not such as to give him reasonable ground for apprehension, nor to intimidate him. The facts stated in the special verdict make only a bare civil trespass, or at most, an "entry upon land after being forbidden." The defendant would not be guilty of the latter if he entered under a reasonable bona fide belief that he had the right to do so: State Winslow, 95 N. C. 649.

In State v. Ross, 4 Jones, 315, 69 Am. Dec. 751, Pearson, J., adverts to the fact that unless the demonstration of force is such as is calculated to put in fear or create a breach of the peace, it is no more than a civil trespass, and adds: “The courts should keep a steady eye to this distinction, because individuals are under great temptation to convert civil injuries into public wrongs, for the sake of becoming witnesses in their own cases and saving costs." Many eminent judges have given caution against this growing tendency to settle private quarrels at public expense: State v. Lloyd, 85 N. C. 573.

No error.

FORCIBLE ENTRY - WHAT CONSTITUTES. — Forcible trespass can only be committed by a demonstration of force amounting to a breach of the peace, or directly tending to it, or such force as is calculated to intimidate or put in fear: Note to State v. Ross, 69 Am. Dec. 756.

COOKE v. COOPER.

[18 OREGON, 142]

MORTGAGE-VOID FORECLOSURE SALE-EFFECT ON PURCHASER OR HIS GRANTEE. Where a mortgagee becomes the purchaser of the mortgaged property at a void foreclosure sale, obtains his deed, enters into possession, and then conveys the premises, his grantee, or any successor in interest of the latter, is an assignee of the mortgage debt and mortgage, and considered as a mortgagee in possession. MORTGAGE RIGHTS OF MORTGAGEE IN POSSESSION AFTER DEFAULT.

While a mortgagee cannot maintain a possessory action to recover possession of the mortgaged premises by reason of the default of the mortgagor, still, if he can make a peaceable entry upon the mortgaged premises after condition broken, he may do so, and may thereafter maintain such possession against the mortgagor and every person claiming under him subsequent to the mortgage, subject to be defeated only by the payment of his debt.

MORTGAGE RIGHT OF MORTGAGEE IN POSSESSION TO REMOVE BUILDINGS. A mortgagee in possession is not to be treated as a mere stranger who goes upon the land of another, and places improvements there without the consent of the owner; but he may lawfully take down and carry away any buildings erected by him on the mortgaged land, the materials of which were his own, and not so connected with the soil that they cannot be removed without prejudice to it.

MORTGAGE.

MORTGAGEE IN POSSESSION, with the right to remove a build. ing from the mortgaged premises, may exercise the right without a resort to equity.

Nicholas and Deady, and Gearin and Gilbert, for the appellant.

Moreland and Masters, for the respondents.

STRAHAN, J. This cause was tried by the court below without the intervention of a jury, and the only questions of law

we are required to consider arise upon the findings, which are as follows:

"1. That A. C. McDonald, named in the complaint, died intestate on the twenty-first day of September, 1878, seised and possessed at the time of his death of the real property mentioned in the complaint, and described as lots one (1) and two (2), in block 120, Stephens's addition to East Portland, Multnomah County, Oregon.

"2. That said A. C. McDonald and his wife, on the twentythird day of March, 1878, to secure the payment of part of the purchase price of the aforesaid real property, for which said A. C. McDonald had given his promissory note, executed and delivered to B. Boeschen, their vendor, a mortgage on said real property, which debt and mortgage was not paid at the date of the death of said A. C. McDonald.

"3. That on the twenty-fifth day of August, 1879, said B. Boeschen commenced a suit in this court, in the equity department thereof, against the widow and heirs of said A. C. McDonald, deceased, to foreclose said mortgage, though no administration of the estate of said deceased had been had, nor any administrator appointed for said estate, and said mortgage had not been nor has it yet been recorded; that a supposed service of summons in said suit was made on the defendants therein, by publication, as against non-residents, and a decree of foreclosure regular in form was made and rendered by this court in said suit on the fifteenth day of October, 1879.

"4. That pursuant to the decree of foreclosure in said suit, the lands in said mortgage described, being the same lots 1 and 2, in block 120, in Stephens's addition to East Portland, in this county, which are mentioned in the complaint herein, were sold at sheriff's sale on the twenty-second day of November, 1879, and were bid off by said B. Boeschen; and said sale having been duly approved by this court, a deed for said lots was in due form made by the sheriff to said Boeschen, which purported to convey to said Boeschen all the right, title, estate, and interest which said A. C. McDonald had in said lots at the time of his death, which deed was duly recorded in the records of deeds for this county.

"5. That said lots passed by a regular chain of conveyances, as alleged in the answer, from said B. Boeschen to the defendant Martin L. Cooper's intestate, the said George Cooper, deceased; the several purchasers under said Boeschen down to