#### Royal Algood v. Patrick Hutchins.

"V V From Surry. j

An administrator advertised and sold a tract of land; the purchaser entered and sowed wheat, and soon afterwards, discovering' that lie had acquired no title to the land his purchase, the contract was rescinded, and he quit the possession. The administrator then sold to another man, who placed a tenant on the land. When the wheat was ripe, the first purchaser, who had sowed it, entered and cut the wheat, and the second purchaser hawled it away. Trespass to et armis will lie for this injury; for, by cutting the wheat, the first'purchaser became actually possessed of it, and the liawling of the wheat away was a violation of this possession.

This was an action of trespass vi et armis; plea, general issue. The Jury found a special verdict. The land on which the trespass was charged to have been committed belonged to the heirs of a man, who hat! died intestate, whose widow, together with her brother Patterson, administered on his estate. The widow intermarried with Cousong, and.he and Patterson advertised the land for sale, and sold it to Pilcher, who put Algood, the Plaintiff, in possession. Algood, being so in possession of the land, cultivated it and sowed wheat. At the close of the year, it was discovered that a title could not be made to Algood, and the contract for the purchase by him was rescinded; and it was agreed between Algood and Cousong, that Al-good should enter and take the wheat when ripe. After-wards, Patterson sold the land to Hutchins, the Defendant. At the time of the sale, Algood set up bis claim to the wheat then growing. Patterson denied that be had any right to it, and told him, if he had made any contract with Cousong for the wheat, he must look to Cousong for it, for Hutchins should take the wheat with the land. Al-good was then in possession, but, before the wheat became ripe, he gave up the possession of the land to Hutchins, who placed a tenant on the land. At harvest, Algood en-*497tcred on the premises, and cut part of the wheat, Hut-chins, on the same day, also cut part of the wheat, each claiming it. Algood gathered, tied up and shocked the wheat which he cut, and Hutchins took it away, and also that which he had cut; and this was the trespass charged in the declaration. The Jury prayed the advice of the Court, and judgment was given for the Plaintiff; which judgment was affirmed by this Court.

Hare, Judge,

delivered the opinion of the Court.:

It does not appear from the case, that either Plaintiff or Defendant had any right to the land on which the wheat in question was raised. It was claimed first by the Plaintiff, and then by the Defendant, under the administrator, who, in that character, liad no right to it. The lands belonged to certain heirs, and whatever right they might have had to the wheat, or whatever remedy they might have against the Plaintiff for cutting it, it is clear the Defendant had neither. The Plaintiff, under the sale to him, supposed he had a right to sow and cut the wheat. He did sow and cut accordingly. By cutting it, he was actually possessed of the wheat so cut, and the Defendant having violated this possession by carrying the wheat away, the Plaintiff is entitled to recover, and judgment must be given for him.