#### MIDGETT SPENCER v. W. F. WEATHERLY.

Where the bargainor in a deed, after executing a conveyance, remains in possession of the land, and contrary to the expressed wishes of the bargainee, cuts down timber, he is liable to an action of trespass quake clausum freoht.

This was an action of Trespass q. e. /., tried before his Honor Judge Bailey, at the Spring Term, 1854, of Tyrrell Superior Court.

The plaintiff showed title to the locus in quo, by reading a deed in fee simple for the premises, with warranty of title from the defendant to the plaintiff, executed six months previously to the beginning of this action. The land conveyed by this deed was a small tract of nine acres, of which about one acre was cleared, upon which there was a dwelling house, in which the defendant continued to reside from the date of the deed up to the date of the writ. There was no evidence as to the character of the defendant’s occupation after making this deed. Shortly after its execution, the plaintiff found the defendant in the act of felling timber, and clearing on the woodland outside of the cleared acre. The plaintiff warned him to desist, but he declared that he would go on with the cutting and clearing as long as he pleased. After being forbidden, as above stated, the defendant cut other trees outside of the clearing, for which this action was brought.

A verdict was rendered for the plaintiff, subject to the opinion of the Court, whether the action of trespass could be sustained upon the facts of the case.

*328His Honor, upon consideration of the question, being of oph nion against the plaintiff, set aside the verdict, and ordered a nonsuit, from which judgment of the Court the plaintiff appealed.

Heath, for the plaintiff.

Smith, for the defendant.

Nash, C. J.

On the part of the defendant, it is contended, that the action cannot be maintained, as he was, at the time the trespass was committed, in the actual adverse possession of the locus in quo. If this be so, the action is misconceived. The action of trespass, quare clausum fregit, is a remedy for an injury done to the possession. It is necessary, therefore, that the plaintiff should show that, in law, the possession was in him. In the present case, the defendant had sold and conveyed the land upon which the injury was done to the plaintiff It consisted of nine acres, one only of which was cleared and under fence, and' within that enclosure was a house in which the defendant lived at the time of the sale, and where he continued to live after it. The trespass was committed outside of the enclosure. The defendant was a mere occupant of the land or tenement at sufferance. In Hardy and Brother against Simpson, Busbee 326, the Court decide, that where land is held under execu-cution, and the defendant remains in possession without title, “ he is looked upon in the light of a tenant at sufferance — a mere occupant.” The principle is stronger when the owner of the land is the vendor. The defendant then was but an occupant, holding for the plaintiff, the owner, and as against him his occupancy or possession was not adverse, and did not extend beyond his enclosures. If, however, he could be regarded as a tenant at all, he was a tenant at sufferance, or at will; and, in either view, he had, by cutting down the timber, especially after being forbidden by the plaintiff, put an end to his tenancy, and subjected himself to this action. Lord Coke states, “ if a tenant at will cutteth down timber jarees, or voluntarily pull down houses, *329the lessor shall have trespass against him, quare vi et armis ; for, the taking upon him to cut timber, &c., doth amount in law, to a determination of his will.” Coke Lit. 57 a. See also 5th Coke, 13 a., and Croke Eliz., 777, 784, and the law is the same as to tenants at sufferance. Peake’s N. P., 196; Bul., N. P., 98, 97 ; John Rep. p. 1. Phillips v. Covert. We have examined the case in 13th Ired. 94, and the others to which our attention was called. We do not think they interfere with the opinion we have formed and expressed. Judgment of nonsuit is set aside, and judgment for the plaintiff on the verdict.

Judgment reversed.