#### AMELIUS G. JORDAN vs. RICHARD ROUSE.

•Where, in an inquisition of forcible entry, &c., the allegation as contained in the affidavit of the plaintiff in applying for this remedy, and in the precept of the Justice ordering a jury, is for a forcible entry only, and the proof makes out a case of forcible detainer only, the plaintiff cannot recover.

A party claiming under a Sheriff’s deed for land sold, for taxes, must show that the taxes were due. Avery vs. Rose, 4 Dev. Rep. 549 — Love vs. Gates, 4 Dev. & Bat. 363 — Pentlanb vs. Stewart, Ibid 330 — Garret White, 3 Ired, Dq. Rep. 131, cited.

This was an inquisition of forcible entry and detainer , had before David Lawrence, Esquire, a Justice of the Peace for t¿e County of Pitt, and brought up to the Superior Court of that County by certiorari, and there tried before his Honor, Judge Manly, at Fall Term, 1853.

The affidavit of the plaintiff, upon- which the proceeding was instituted, is as follows:

State oe North Carolina, 1

Pitt County. J A. G-. Jordan maketh oath, before me, Groold Hoyt, one of the Justices of the County aforesaid, that he is the owner of lot No. 4, in the town of Greenville, as by his deed exhibited to me from Marshall Dickinson; and that forcible possession of the same has been taken from him.

Signed, A. Gr. JORDAN.

Witness G-oold Hoyt, J. P.

*120' The process issued to the Sheriff by this Magistrate conr--manded him to summon twenty-four men to be at the lot No. 4, &e., “to inquire upon their oaths of a certain entry made with strong hand (ás it is said,) into the messuage,” &c., “ against the form of the statute in such cáse made and? provided.”

The jury summoned in obedience to this writ came accordingly, and for their verdict found -that the plaintiff was seized in fee, and that the defendant entered, with force and a strong hand, into the premises, and that he still detained them. . ,

The lot in question was unoccupied at the time of the alleged force, and without improvements. It had once been under fence, and stables put on it, and it had been for some years cultivated under the authority of Marshall Dickinson, who claimed to have bought it at Sheriff’s sale for taxes, but had taken no deed for the same, and produced no evidence of such purchase or payment of taxes. Such is the state-ment of Dickinson, plaintiff’s witness. The lot, some years before defendant’s entry, was occupied by one Kinsaul, by permission of one Selby, who setup a claim under one Evans, but produced no title or authority to dispose of the premises. The plaintiff claimed by deed of bargain and sale, with warranty of title, from Marshall Dickinson, made shortly before the entry of defendant- The force complained of, as proved by plaintiff’s witnesses, was the act of going on the unoccupied lot and partly removing a fence, when ho was forbid by the plaintiff; and Selby said, in his presence, that he could not be turned out by any force that could be produced ; but it does not appear that he replied, but he proceeded with his work, and held the land in question, and still holds it in possession. There was much other matter contained in the record, but this is deemed sufficient to present the points upon which the opinion qf this Court proceeded. The plaintiff moved to dismiss the certiorari, and •the defendant moved to quash the proceedings below.

*121Upon consideration of tbe several matters set forth in the record, Ms Honor gave judgment in favor of the plaintiff, dismissing the petition for a certiorari, from which the defendant appealed to this Court.

Diggs, for plaintiff.

Donnell, for defendant.

Battle, J.-

The only act charged against the defendant by the plaintiff, in his complaint to the Justice, was that of a forcible entry, and nothing more than a forcible entry is . set forth in the precept of the said Justice to the Sheriff, commanding him to summon a jury to inquire thereof. The-record of the proceedings made by the Justice, before whom the cause was tried, states that the defendant traversed the' “force alleged.” The only issue for trial, therefore, so far as the force was concerned, was what was affirmed on one side and denied on the other, to wit, the forcible entry. The only testimony set out in the record, upon which the verdict as to the force could have been found, proved (if it proved anything) that the defendant was not guilty of any forcible entry, but only of a forcible detainer after a peaceable entry.Yet the verdict finds both. Upon the clearest principles of law that verdict was wrong, and the Justice ought not to have issued any writ of restitution upon it. For this error alone, which was apparent upon the record, the proceedings ought to have been, upon the motion of the defendant, quashed in- the Superior Court, as he- could not appeal, and had- no- other mode of taking advantage of it. Sherrill v. Nations, 1 Ired. Rep. 325.

Without noticing all the errors assigned, we will advert to one which is also fatal to the proceeding had before the Justice. The plaintiff himself showed that he had neither the possession nor the title to the lot in controversy. He claimed under Dickinson, whose testimony (if it were admissible *122against defendant, which it certainly was not,) showed that he had no deed from the Sheriff, and there was nothing from, which a deed coaid be presumed. But if he had had a deed, he failed to show that there were any taxes due when the land was sold by the Sheriff, which was certainly necessary, as has often been decided in this Court. Avery v. Rose, 4 Dev. 459 — Love v. Gates, 4 Dev. and Bat. 363 — Pentland v. Stewart, Ibid 380 — Garret v. White, 3 Ired. Eq. Rep. 181.

The judgment of the Superior Court must be reversed, which must be certified to that Court, so that the proceedings before the Justice may be quashed,and a writ of restitution be issued to the Sheriff, commanding him to put the defendant into possession of the lot from which he was ejected under the precept of such Justice. The King v. Jones, 1 Strange Rep. 574 — The King v. Wilson, 3 Adol. and El. Rep. 817, (3 Eng. C. L. Rep. 229) — 2 Chit. Gen. Prac. 241.

Judgment reversed.