#### ALLEN LAMB vs. MARMADUKE SWAIN.

The claimant of a tract of land under a color of title, who puts a servant in a house situated upon it, with the privilege of getting fire-wood, is in possession of the whole tract as against a wrong-doer, and can maintain an action against one who enters and cuts timber on the wood-land.

Action of trespass q. c. e., tried before his Honor, Judge Dick, at the Spring Term, 1856, of Randolph Superior Court.

The plaintiff gave in evidence the well of Gabriel Lamb, proved August, 1849, in which the land in question was devised to one Nathan Lamb, and a deed from him to plaintiff for the same, dated 11th March, 1850, and showed no other title. He showed that in the year 1851, he made and harvested a crop of oats upon this land.

The plaintiff did not live on the land in controversy, but there were two houses on it, one of which was occupied by one Jane Walker, who had been put in possession of it by Nathan Lamb in 1850. The other house was occupied by some women by the name of Lineberry. These houses were held under the plaintiff, and the occupants had the privilege of cutting and using fire-wood. Only the latter paid rent.

*371The trespass consisted in cutting and hauling wood and rails from the wood-land of the tract in question.

The defendant insisted that, as the plaintiff had not shown title, he had no constructive possession, and having no actual possession, he could not sustain this action.

He also insisted, that Jane Walker’s and the Lineberrys’ possession was presumed to extend to the boundaries of the land on which they were situated, and that, as they were in the actual possession, this action in favor of the plaintiff would not lie, and asked his Honor so to charge.

The Court declined instructing the jury as requested, but said, “ if the plaintiff had sown oats on the land, and had taken them off at the usual time of cutting them in 1851, and the jury believed the possession of Jane Walker and the Lineberrys’ extended only to the use of the houses in which they lived, with the privilege of cutting fire-wood, the plaintiff could recover against the defendant, who showed no title.” Defendant excepted.

Yerdict and judgment for plaintiff. Appeal by defendant.

No counsel for plaintiff

Morehead, for defendant.

Nash, C. J.

The question is, as to the possession of the plaintiff. Without possession, by plaintiff, actual or presumptive, the action cannot be maintained. We agree with his Honor, that the plaintiff had such a possession as will sustain his verdict against the defendant, who was a trespasser without any title. The plaintiff, claimed title under a deed of conveyance from Nathan Lamb, who claimed under the will of Gabriel Lamb. Plaintiff took possession under his deed, and put the land under cnltivation, and lived on another tract of his, about two miles distant. No other person was in the adverse possession, at the time the trespass was committed. On the land in question, were two houses, which were occupied by two individuals; one of whom, Jane Walker, was his servant *372to keep possession for him, and who had liberty to take firewood, from the wooded portion of the land.

His Honor was requested to charge the jury, that the possession of the whole tract was in the actual occupants of the houses, and that the action should have been brought in their names. This, his Honor declined. Prom the statement of the case, those individuals were merely tenants of the houses they respectively occupied, and their actual possession extended only to the houses and the ground immediately around them. Yet, though this be so as to the tenants themselves, as to the plaintiff, the possession of the tenants was his possession, and extended to the lines of his deed, so as to enable him to maintain an action of trespass against any one who has not a better title to the land. Graham v. Houston, 4 Dev. 232 ; Osborne v. Ballew, 12 Ire. 373. The plaintiff had such a possession of the locus in quo, as will maintain the action.

Per Curiam.

There is no error, and the judgment is affirmed.