#### Yeates *vs.*Allin.

Trespass *q.clau. fregit.*

A judgment in sjectment establishes (as against the defendants,) the plaintiff’s right of entry ; and the execution of the *ha. fa.*enables him *to*take and hold the possession : he cannot, when he so entered, be dispossessed by warrant of forcible entry.

One haying a right of entry upon land, may enter (without the aid of a *ha. fa.)*against the will of a tenant in possession, if he can do so peaceably, and without trespassing upon the person or rightful property of the tenant ; and, tho’ he may be turned out again by warrant of forcible entry and detainer— trespass quare clausum fregit will not lie, for he may plead *liberum tencmen turn,*and justify under his right of entry.

[Mr. Monroe for Appellant: Mr. Riqliardson for Appellee.]

From the Circuit Court por Anderson Countt.

*April*28.

Chief Justice Robertson

delivered the Opinion of the Court,

Allin sued Yeates, in trespass *quare clausum*fregit.— Yeates relied, for justification, *on*a right of entry adjudged to himself and others, (claiming as tenants in common with Allin,) in an action of ejectment, in which they had obtained judgment against Allin, for seven undivided eighths of a tract of land in his actual occupancy.

The proof is, that, after the judgment, and before a writ of *habere.facias*had been issued, Yeates *entered,*without actual force, into one of the rooms of the house in which Allin was living, and, in opening the door of an “ out house,” for the purpose of putting some meat in it, he broke a wooden lock.

On this proof, the circuit judge instructed the jury, that, “although they might believe from the evidence, that the defendant had the right of entry into the premises, and that that right was confirmed by the judgment of the court; yet defendant had no right to enter the premises, without the consent of the plaintiff, unless put into possession by writ *oí habere facias possessionem*on the judgment ; and that, if'he did enter without such authority, he was a trespasser and thereupon verdict and judgment were rendered against Yeates, for eighty one dollars in damages.

The law is altogether different from what the instruction assumed it to be. *Liberum tenementum*is, just as it was at common law, a good plea in bar to an action of trespass *quare clausum fregit.*To say that a> person has a legal right of entry, but that he has no legal right *to enter*without the occupant’s consent, or unless the occupant shall have surrendered the possession, or left it derelict, would be inconsistent and unuieaning. The legal right *135of entry, like every other perfect legal right, is indedependent of the will of others ; for if it be not 'so, it cannot be claimed or asserted as a matter of right, but must be invoked as a favor, and is, therefore, no legal right. A person having a right to enter on his own land, cannot be guilty of trespass *on the land,*or *any thing pertaining to it,*by entering, whether with or without the consent of another who has no lawful right to prevent the entry. *Tribble*vs *Frame &c.*5 *Litt.*187, and *Tribble*vs. *Frame et al.,*7 *J. J. Mar.*603.

The only innovation which, so far as this case is concerned, the statute for regulating proceedings for forcible entries and detainers, has made on the common law, is, that the occupant may be reinstated, if he shall have been dispossessed against his will. But he cannot maintain *trespass quare clausum fregit,*for an entry without his consent, by a person who, at the time, had a legal'right to enter.

The judgment in ejectment established the right of entry in this case; and a *habere facias*was not necessary, except for the purpose of *compelling*a surrender, and of entitling Yeates to *a retention*of the possession, after it had been delivered to him.

There is no complaint of any trespass on the person or the property of Allin. The suit is only for an alleged trespass on the land, in which Yeates had a legal interest, and on which he had a perfect legal right to enter. In such an action, for such an entry, there can be no recovery of damages, unless Yeates transcended his right of making entry. If Yeates abused his right of entry, and trespassed on the person, or the rights, of AIlin, damages might be recovered for such a trespass. But the fact that, having a right to enter, he entered *without ¿Min's consent,*did not make him, as the instruction erroneously supposed, a trespasser, or entitle Allin to damages.

Wherefore, the judgment of the circuit court must he reversed, and the cause remanded for a new trial.