#### WILLIAM WALTON v. JACOB and GEORGE FILE.

If one enters into the possession of land under a treaty of purchase with the owner, he becomes a tenant at the will of the owner, and cannot sustain an action of trespass quare clausum fregit against such owner, for entering upon the premises without his consent.

This was an action of trespass quare clausum fregit, for entering upon the possession of the plaintiff, and cutting and hauling off a quantity of wheat.

Upon the trial at Rowan, on the last Circuit, before his Honor Judge Donnell, the case appeared to be, that the defendant, Jacob File, had executed a bond to the plaintiff, to make him a title thereafter to the locus in quo ; and at the same time received from the plaintiff the purchase money, and delivered him the actual possession of the land. The plaintiff continued in possession, and cultivated a part of the land in wheat and corn. At harvest time, the defendant, Jacob File, together with the other defendant, George File, who had been living on the land, and had sown the *568wheat, before the sale to the plaintiff, entered upon the premises against the plaintiff’s consent, and cut and carried away the wheat. Under the instructions of his Honor, a verdict was rendered for the plaintiff, subject to the opinion of the Court upon the question whether the action could be sustained. If the Court should,be of opinion for the,plaintiff, then judgment was to be rendered for him ; if otherwise, a judgment of nonsuit was to be entered. His Honor, pro forma, gave a judgment for the plaintiff and the defendants appealed.' ■

D. F. Caldwell, for the plaintiff

cited and commented on 3 Salk.' 354. Wills. Rep. 221. 3 Bur. Rep. 1563. Yin. Ábr. tit. Trespass, 440, 441. Graham v. Peat, I East’s Rep. 244. Myrich v. Bishop, 1 Hawks, 485. Jones et me. v. Taylor, I Dev., Rep. 434. Carson v. Baker, 4 Dev. Rep. 220. He also contended that George File could not justify his entry; and that, as the plea was joiintj it .being bad for one, was bad for the whole.

Pearson, for the defendants,

argued contra, that the plaintiff had no ,such estate as a court of law would take notice of, to sustain this action, and referred to Jones et ux. v. Taylor, 1 Dev. Rep. 434.

Daniel, Judge.

— The possession of the plaintiff having been obtained by the license of Jacob File, the legal owner, it became a rightful possession. He was tenant, not from year to year, but a tenant at will, by implication. This kind of tenancy arises when the party is in possession of the premises, with the privity and consent of the owner, no express tenancy having been created, and no act having been done by the owner, impliedly acknowledging such party as his tenant; as where he has been let into possession, pending a treaty of purchase, or is let into possession under an agreement for a lease, he then becomes tenant at will. Adams on Ejectment, 103. File could not have maintained an action of ejectment against Walton, without having given him reasonable notice to quit; 'for there is no doubf that an ejectment treats the tenant in possession as a wrong-doer, at the time the action is brought. If he *569be lawfully in possession then, it is an answer to the action, whatever may be the date of the demise lain in the decía-ration: for an ejectment is altogether a fictitious remedy. Doe v. Jackson, 8 Eng. Com. Law Reps. 126. All the authorities cited by the counsel for the plaintiff, go no further than to establish the above doctrine. The plaintiff, being considered in a court of .law, the tenant at will of Jacob File, File had a right, at his will and pleasure, to enter upon his own freehold. 1 Thomas’s Coke, 646-648, note D. And in this action of trespass quare, clausum fre-git, he and his codefendant, (who entered with his permission,) had in law a right to defend themselves, under their joint plea of “ not guilty.” We think the verdict and judgment must be set aside,, and a judgment of nonsuit entered. ,

Pee Curiam. Judgment reversed..