#### DOGGETT v. HARDIN.

(Filed May 19, 1903.)

EJECTMENT — Possession—Evidence—Non-Suit—Practice.

Where the plaintifi in ejectment offers no evidence tending to show that defendant was in possession at the time of the commencement of the action, a judgment of non-suit should be granted.

Action by E. H. Doggett and others against P. H. Hardin and others heard by Juclge E. B. Jones at March Term, 1903, of the Superior Court of Rutherford County. From a judgment of nonsuit, the plaintiffs appealed.

Eaves & Rucker, for the plaintiffs.

McBrayer & Justice, for the defendants.

Douglas, J.

This is an action apparently for the recovery of land, with damages resulting from its unlawful detention, although the exact nature of the relief demanded and indeed of the plaintiff’s claim, does not clearly appear in the pleadings. However, we will treat it as an -action in the nature of ejectment, which in its origin and essential features is a possessory action. It is true this form of action has been long since adopted as the usual method of determining the title to land, but from its very nature it will not lie against one not in possession. This is equally true whether the action is under The Code or at Common Law. Viewed simply as an action under The Code for the recovery of real property, it is evident that the land cannot be recovered from one who is neither in actual nor constructive possession. As there was no evidence tending to show that the defendants were in possession at the time of the bringing of this action, the motion for non-suit was properly allowed.

Affirmed.