#### JOHN PATTERSON vs. WILLIAM BODENHAMMER & AL.

The action of trespass quare clausum fregit is a remedy for an injury to the possession, and therefore cannot he maintained hy one who had not the possession, at the time the injury was alleged to have been committed.— The caso3 of Dobbs v. Gullidgc, 4 Dev. and Bat. 68, and Tredwcll v. Red-dick, 1 Ircd. S6, cited and approved.

Appeal from the Superior Court of Law of Guilford County at the Spring Term 1850, His Honor, Judge Battle, presiding.

The following is the case sent up from the Court below:

This was an action of trespass quare clausumfregit, to which the defendants pleaded not guilty.

The plaintiff relied upon both an actual and construe» tive possession of the locus in quo, at the time when the trespass was alleged to have been committed. To show a constructive possession, founded oil title, he produced a grant to John Talbot, dated in 1847, and a deed from Talbot to George Mendenhall, dated in 1793. He then produced the deed from one Robert Stewart, to Eli Thigh, *5dated Nov. 14th, 1830, a deed from the said Pngh to John Ilorney, dated Nov. 11th, 1834, a deed from said Ilorney to Jeffrey Ilorney, dated Sept. 1835, and a deed from said Ilorney to John Lamb, dated Sept. 1840, and then a deed from the said Lamb to the plaintiff, dated 25th April, 1843, all of which included the. locus in quo. It was testified that the land, included in the deed to Stewart,was open forest, no part of which was in cultivation, but he and the successive proprietors after him occasionally cut rails upon it for the use of other plantations. It was stated that Jeffrey' tlorney cut rails upon it every year, while he owned it, and hauled them off toa plantation, which he cultivated about three miles distant. It was stated, further, that Lamb built a house upon the land in April or May 1839, The deed from Lamb to the plaintiff conveyed a small half acre lot, situated in the town or hamlet of Florence, upon which was an unfinished house, built by William Patterson, a son of the plaintiff. It was then shown that the defendants moved this house from the lot in March 1S40 : and it was for this that the action was brought, the writ having been issued the 17th June 1S4G.

To show an actual possession the plaintiff introduced a witness, who testified, that, immediately after the plaintiff’s purchase, he went and nailed boards across the space intended for a chimney and the windows, which were open, and put some empty boxes and barrels in the house.

The defendants contended, that the plaintiff had shown no such title as gave him a constructive possession of the house and lot in question: and that, at the time when the house was removed, it was in the actual possession of them or one of them, and that therefore the action could not be sustained. To prove this possession, they called as a witness one Thomas Barnurn, who testified that the. defendant Bodonhammcy came to his residence *6in Westminster and requested him to go and see him take possession of the house in question; that he went and saw the said defendant tear off the boards, which the plaintiff had nailed aeross the windows and put out the plaintiff’s boxes and barrels, and agreed with the defendant Dillon, by parol, that he might have the house for twelve months at six pence per month, each party being at liberty to put an end to the lease by giving the other notice. This was in May 1844. Another witness testified, that the defendants Dillon and White had some tim- ■ focr and a wagon in the house, and that a man, named Beard, also kept a wagon in it, being kept open; and that it was used for no other purpose than as a reposito.ry for such things.

The defendants offered in evidence a paper for the purpose of showing that William Patterson had an interest in the house and lot, which was liable to be sold for the payment of his debts, and also for the purpose of showing that upon William Patterson’s failing to comply with his contract, the defendant Dillon, who had bought from Lamb the residue of the tract of land, was entitled to take possession of the locus in quo, but it being admitted that William Patterson had failed to comply with the terms of his contract, and that the defendant Dillon had no deed covering the house and lot in question, the Court rejected it, holding that it was immaterial, as they had already been permitted to show themselves, as far as they could, to have been in the actual possession of the house at the time of its removal.

The Court was of opinion and so charged the jury, that the plaintiffhad not shown a complete title, so as to give him a constructive possession, but that, if the evidence were believed, he had shown an actual possession, against which the defendants had proved nothing to prevent his recovering in this action. The plaintiff had a verdict, whereupon the defendants moved for a new trial for the *7rejection of testimony and for misdirection in the charge, which motion was overruled, and a judgment given, from which the defendants appealed.

Kerr, for the plaintiff.

G. C. Mendenhall, for the defendants submittted the following argument:

7 Comyns Digest 492 and ’3, to show actual possession is necessary to sustain trespass. 9 Johnsons Rep. 61, Stuyvesant v. Tompkins, see caption and first part of Court’s opinion as to lawful as well as actual possession necessary. 1 T. Rep. 426, Stotts v. Booth, Buller, J. top page 227. N. C. Term Rep. 10S, Sheppard v. Sheppard, this to show a possession short of 7 years, will not allow a plaintiff to recover in ejectment; see caption and Daniel’s opinion. 2 Car. L. Rep, 89, McMillan v. Haf'• fley, see whole of Cameron’s opinion as to actual possession necessary to sustain the action of trespass to land. 4 Dev. Rep. 232, Graham v. Houston, see caption and last page of Ruffin’s opinion, top 234, to show cutting trees is no disseisin. 4 Dev. & Bat. 164, Ring v. King, to shew plaintiff cannot sustain trespass without actual possession, and this must mean lawful possession — last half of Gaston’s opinion 168 top. 4 Dev. 158, Green v. Horman, seepage 161, nearly all this page to show cutting trees not good or cultivation necessary, see also bottom of page 162 to show every man should know his own boundary. 12 Johnson s Reports 193, Wick v. Freeman, to shew an actual re-entry is necessary or actual title in the plaintiff; read the whole case. 6 Bac, Abr. 566, (3 clauses left and 2 right.)

Nash, J.

The judgment in this case must be reversed. The plaintiff has shown neither an actual or constructive possession of the premises in question. To avail himself of the latter, he must prove the legal title in himself at *8the time the alleged trespass was committed. In this he lias not succeeded, and the jury were so instructed by his Honor, who tried the cause. It is however, in the second branch of the charge, that the error lies, of which the defendants complains. After informing the jury that the legal title was not in the plaintiff, the charge proceeds, “that if the evidence is believed, the plaintiff had shewn an actual possession, against which the defendants had proved nothing to prevent his recovery in this action.” Wo do not concur with his Honor. At the time that Lamb, who claimed title to the premises, conveyed to the plaintiff in 1843, there was on them an unfinished house. The plaintiff pat into it some empty barrels and boxes and nailed plank over the spaces left in the walls, for a window and fire place. This was the only possession he ever had, as far as the case discloses. A year after, in May 1844, the defendant Bodonhammer pulled off these boards and threw out the articles put there by the plaintiff, and leased the house for twelve months to one of the other defendants, who put into it somo wagon timber.— In this condition the premises remained, until March 1S4G, when the house was removed by the defendants; and the case states, that this removal constituted the trespass, for which the action was brought. It Í3 very clear it cannot be sustained. Whatever possession the piainliff may have acquired by putting into an unfinished house, which had never been inhabited by him or any other person, some empty barrels and boxes, and nailing on the boards, as set forth in the case, was lost to him by the acts of Bodenhammer of a similar character. If they were sufficient to give Patterson the actual possession, similar acts on the part of the defendant were sufficient to divest him of it, and place the actual possession in the latter. The acts were of the same character and must carry with them the same effects. Two years after Bod-enhammer had dispossessed the plaintiff and while his *9possession, so acquired, continued, the house was removed. To enable the plaintiff to maintain an action for the removing of the house, he ought to have re-entered before the house was removed and thereby revert the possession in himself. The action of quare clausum fre-git, is a x'emedy for an injury to the possession; Dobbs v. Gullidge, 4 Dev. and Bat. 68, and therefore cannot be maintained by one who has it not. Tredwell v. Reddick, 1 Ired. 56.

His Honor erred in directing the jury, that at the time the house was removed, Patterson, the plaintiff, was in the actual possession of it, and could maintain his action,

Per Curiam. Judgment reversed and a venire de novo ordered.