#### Richard B. Jones et ux. *v.*Isaac Taylor.

From Pitt.

A person who enters into the possession of land under an equitable title, with the consent of the legal owner of the fee, acquires no estate of any kind or degree in it, and the legal owner may maintain *trespass quare clausum fregit,*for an injury to the inheritance.

Trespass quare cuausum ere git, and on the trial the case was, that the Plaintiffs by their Attorneys, had sealed and delivered the following instrument *to one John C. Stanly.*

*“*Know all men by these presents, that we, *Richard 13. Jones*and *Frances Jinn Jones*1ns wife, are held and firmly bound unto *John O. Stanly,*in the just and full sum of four thousand three hundred and four dollars, (54304) current money of the State aforesaid, to the pay. liient whereof well and truly to be made, to the said *John C. Stanly,*

Ifis executors, administrators and assigns, we bind ourselves and our respective heirs, executors and administrators, jointly and severally, firmly hy these presents, sealed with our seals, and dated this 14th day of January, A. B. 1815.

“ The condition of tne above obligation is sucb, that whereas the said *Richard B. Jones*and *Frances Jinn Jones,*his wife, by certain let. ters of attorney, under their hands and seals, have made and appointed *William Blacklcdge, Esq.*and *JIagh Jones,*their agents and attorneys, to sell and dispose of two certain tracts or parcels of land lying in Craven County, and on Neuse road, near the town of Newbern, the one patented by *Nicholas Rutledge*in 1744, for 400 acres, the other by *Jeremiah*Vail, in 1755, for 150 acres more or less, in obedience to which letters of attorney, the said *William*and *Hugh*have bargained and sold said tracts or parcels of land to the said *John C. Stanly*in fee ¡simple, at and for the price of two thousand and one hundred and fifty dollars, which said consideration the said purchaser has paid pr secured tobe paid. Now therefore if the sakl *Richard B. Jones*and *Frances Ann*his wife, shall execute, seal and deliver unto the s.ñd *John C. Stanly,*his heirs, or assigns, a good and sufficient deed, and assurance io convey and assure said two tracts of land to the said *John C. Stanly,*Iris heirs and assigns, in fee simple absolute, in such maimer and form as the acts of the General Assembly of the State of North-Carolina «require, for the conveying and assuring of lands *otfeme coverts*or married women, and shall also cause the private examination of said Fran-ses *Ann Jones,*as to the execution of said deed or assurance to be bad, obtained and reeorded, in the manner required by the laws of North-*435Carolina, for the sale and conveyance of (he real estate of married women, then the above obligation to be null and void, otherwise to remain in full force, virtue and effect.”

The *locus in quo*was included within the boundaries of one. of tiie patents, mentioned in the condition of the bond. Directly after its execution, *Stanly,*with the consent of *Jones*and *Blackledge,*entered into the premises, and took actual possession of the. cleared land, which included a part of both patents, and continued the entire and exclusive, possession ofit, cultivating it, and claiming and using the timber on every part of the land within the boundaries of the patents, although not within his enclosure.

The. trespass complained of was committed after the Sale to *Stanly,*and before he had received a conveyance, viz. in January, 1818, when the Defendant, claiming title adverse to that of the Plaintiffs, entered upon the land, and cut and used several timber trees growing thereon, hut on the outer side of the fences and enclosures of *Stan-, ly. ■*Since the first entry of *Stanly,*the Plaintiffs have had no possession of the land, unless the possession of *Stanly*is in law their possession *;*or unless they have a possession constructively, by reason of their legal title.

Upon these facts, his honor Judge Euritst held the possession of the *locus in quo*to be in *Stanly,*and that the. Plaintiffs had not a possession, sufficient to enable them to sustain this action. In submission to this opinion the Plaintiffs suffered a nonsuit, and appealed.

*Gaston*& *Badger,*for the Plaintiff,

referred to *Starr*v. *Jackson.*11 *Mass. R- 519*— Sluyvesant v, *Durham, 9) John. Hep,*61— *Taylor*v. *Townsend,*8 *Mass. R.*411 — » *Kennedy*v. *Wheatley,*2 *Haywood 402*— McMillan v. *Haj-ley,*2 *Law Ilepos, 89*— Gordon v. *Harper. 7 Term Rep, 12*— Carson v. *Moble,*1 *Law Repos 522*— White v. *Morris,*1 *Hawks 501*— Chitty *on Pleading,*49 — 2 *Sanders-17 ñ, n. 1*— Cruise *Big. Tenant at will.s.*10, *19*— BromJtt’Id v, Smith, 6 *East, 580*— Knight t, *Quigley,*a *Camp.*505*— *436*Hogan*v. *Johnson,*2 *Taun. 148*— Bong. *21*— Cruise *Big. Mortgage, s. 3*— Mams *on Ejectment,*103, 108, 117, 13S *—Thunder ex dem, of Weaver*v. Belcher, 3 23a$f. 449— *Joiner Trespass JST.*— JFiM v. *Cantello, l John. Cas.*123— *Jackson*v. *Sagers, Bo. S3*— Hyatt v. 4 *Mcp-*150 — 2 *Cain’s cases in error,*314 *S. C.*— Brooke’s *Jib, Trespass, FI.*73, *131*— Bo. *Tenant per Copie PI.*2, 3---*iSugden on vendors, 183-*— Boc *esc dem. of Hollingsworth v.Slenneti,*2 *Esp. II.*718 — 3 *111. Com. 166-7*— -Co. *Lilt.*298 — 8 *Rep. 75*— Com. *Big. Trespass A. 2*— Mayor *of Northampton*v. *Ward, 1 Wits.*107,

*Hogg,*for the Defendant,

cited *Mijrick*v. *Bishop,*1 *Hawks 485*— Lit. *s. 671*— Parker v. *Walker,*3. *Wil.*25— *Ooodtille ex dem. of Galloway*v. *Herbert, 4 Term. Rep. 680*— Right *ex dem. of Lewis*v. *Beard,*13 *East.*210— *Brane v. Rawlins,*10 *Bo. 261*— Co. *Litt.*.270 *b.*note— *Ostrander*v. *Rowan,*9 *John. R. 330*— Livingston *v. Nevin,*10 *Johns. R.*335 — 4 *Com. Big. by Hammond, estate by grant, G. 15*— Gilbert *on Tenures,*30 *Litt. s. 411*— Co. *Litt.*51 *a.*— 5 *Rep.*13 *a.*— Phillips v. *Covert, 7 John. Rep. 1*— Suffern v. *Townsend,*9 *Bo. 35*— Cooper v. *Slower, Bo. 331*— Ward v. *McCauley,*4 *Term Rep. 489*— Gor*don*v. *Walker,*7 *Bo. 9*— White *v. Morris,*I *■Hawks*301— *Bacon Jib. Trespass, 3*— Bacon’s Institutes, *C. dies*2 *Lev. 147*— Bro. *Jib. Trespass, pi. 365*— Redingfield *v. Onslow,*8 *Lev.*209 — 3 *Wil.*120 — 3 *Bl.Com. 201*— Harper v. *Bur-beck, 3 Burr. 1556*— Graham *v, Peat, 1 East. 244*— King t. *Watson, 5 East 480*— Campbell v. *Arnold,*1 *John. R. ,512*— tobey v. *Webster, 3 Bo. 460*— Hyatt v. *Wood, 4 Bo. 314*— Stuyvesant v. *Tompkins,*9 *Do. 61*— Wickham v. *Freeman,*12 *Bo. 183*— Jefferson v. *Jefferson, 3 Lev.*131 — 1 *Chitty*242 — l *Bo. 244*— Elwes v. *Maw,*3 *East. •48*— Kenlyside v. *Thornton,*2 *Bl. Rep. 1111*— Hilliard v. *j Itorch, 3 Hawks 246*— Co. *Litt.*57 *b.*— St. 6 *Ann,*Chap. *1 s.*5 — 4 *Geo. II, eh.*28.

*437HendeusoN, Judge.

I shall confine myself to a short. discussion of the principles, to be extracted from the au-thoriiies which have been cited. There cannot he a possession of lands, without some estate in them. If one enter on my lands, and oust me, he thereby gains an estate ■ in them, and puts an end to mine; for if he acquire it, I must lose it. It cannot exist in us both adversely at the same time. 1 may put au end to the adverse estate by action or entry, but it continues until an end is put to it. For trespasses, whilst in this state, the disseisor may bring his action, but I cannot, for I have no estate in the land$ I have nothing hut a right, not to the land to speak properly, but to an estate in the land. If one enter by my permission, and S grant him no estate in the land, by which is meant an interest recognized in the law, he may be my bailiff, my agent, my receiver, or my guest, but he is not my tenant. He does not divest me of my *possession;*lie may hold Lite possession *for*me, but he does not hold it *against*me. That no estate, that is, interest in the land, is created by this permission to enter, is evident from the fact that there is no writ in the register prescribed lbr it, in case it should be divested, whereby it may be restored. We find in the register a variety of wilts for the owners of estates, by which they may be restored to them, but none for such a claimant as *John*C. *Stanly.*There are the various writs for the tenant in fee, in tail and for life *$*and since the time of *Edward 4th,*and *Henry 7ih,*we have used the ejectment as a remedy for the termor, not only to recover damages, bnt the term itself. On this subject more shall be said hereafter. It is absurd for the law to recognize an es-iafe, or an interest in land, and yet not provide a mode for the recovery of that estate or interest, should it be lost If *Stanly’s*interest is an estate, give it a name. — * Is it a fee simple? Ah answer in the negative is at once given, and perhaps with some petulance. But it lias more of the character of a fee simple, than of any other *438(jSfa(e> The former owners, *Jones*and wife, consented should be owner in fee, and unless upon the principle that the major includes the minor, it has not a s*ulg)e property of any other estate known in the law.— To an estate at will, to which it is attempted to bo reduced, it bears not the least resemblance j for if we take either the agreement itself, or the understanding of it by the parties as our guide, we shall find that it was to continue forever, instead of being determinable at the will of the *parties;*it was never designed, that either of (hem should put an end to it at his pleasure. The same objections may be made to it, as an estate from year to year. If it is a tenancy, what services are due ; the reply made is, that none were reserved, but if it is a tenancy, fealty is due of common right. I use the Words tenant and tenancy in their modern acceptation, not in their feudal meaning. We may perplex ourselves in vain to find out a legal term to designate this interest, for it has in law no existence. It is unknown to the law, it is an equitable fee simple, and were it not for the notice taken of it in the Courts of Equity, we should not, in the Courts of Law, be so perplexed with it. We would call it at law what it really is, a *licensa to enter,*which protects the person to whom it is given, from an action for entering and occupying, until the license is withdrawn. And although there is much said in the books on the subject, it amounts to only this, it protects the person both from au action of trespass *quart clausum fregit,*and the action of ejectmcnt *•,*and this upon common law principles. I suppose it is upon principles of policy, for the encouragement of agriculture, that such license cannot be withdrawn, but upon reasonable notice, say six months, and that the occupier should have the emblements. This rule, however, does not affect the rights of the owners as to strangers. Astute as we may be, to mhke the interest of *Stanly*something like an estate, something like a possession, to protect the person *439who (bus enters under a licence, from the actions of the owner, we have no such motive as regards strangers— *7 tJ*mere wrongdoers, if we are governed by principles of property, it is much more proper that the owner should bring the action, than one who enters under a treaty for a purchase. From the contract, if it should be fulfilled» the owner is trustee fer the purchaser, lie therefore recovers for the whole injury ; there can be no doubt upon the question, whether the damages are not awaVded to the wrong person. But the purchaser’s claim to the damages is provisional ; the purchase may not he completed, and in such cases the wrong person may pocket the recovery. This uncertainty would perplex the Jury, and they would necessarily be influenced by the probability of the purchase being completed or not.

I have read, with great satisfaction, the very able opinion of Chief-Justice Parker, in the case of *Starr*v. *Jackson,*(11 *Mass. Rep. 519,)*and it is no objection that his argument would lead to the same result, if there was a lease for years, as it stood before the time of *Edward 4th.*For until that time, a termor had no estate, and consequently no possession in the lands, l mean such a possession as ousted that of the owner. As to tiie world, the landlord had the ownership and possession. As between termor and landlord, their relationship existed in contract — in agreement; nothing passed in the land, it is true, the termor had his action of ejectment for his ouster, but before that time» i believe he could not sustain trespass *quare clausum f re-git.*But should l be mistaken in tisis, it weakens the argument hut slightly ; if not, it is conclusive.

Upon no principle, can a mere tenant at will interfere with the lord’s right, of sustaining the action, for a permanent injury to the freehold. This reasoning, by no means, goes to deprive such an occupier from maintaining trespass against a wrongdoer, for ousting him from, the possession, or from recovering for a trespass on *440things more immediately in his possession ; as for enter-¡tig !be house, or enclosure, or treading down his corn or 0|. pulling down trees necessary for shelter, shade, í'uel or repairs ; and the right would also extend to a tenant at sufferance. But this is beside the owner’s right to the action ; it does not affect that. I repeat it again, that it is the countenance which a Court of Equity gives to such purchasers, which pexplexes us. Strip it of that, and it presents the simple case of one, who enters on lands by the license of the owner, which certainly protects him for all acts done under that authority; hut like all licenses, it is revocable, and does not interfere with the- possession of the owner.

We read of the plea of *liberum tenementum*for the landlord, but of none analagous to it, for the termor.-— He defends his entry and possession under the estate of his landlord, by showing a licence or permission from him. Had he an estate recognized in the ancient law, it would liave prescribed to him a plea founded upon it. But we find that it gave him neither an action to recover his estate or interest, or a plea under which he might assert it. And it would be strange, if the freeholder should lose his rights in the estate, without another person’s acquiring (hem. I speak of the law as it stood before the lime of *Edward 4th,*when the owner of an estate and the freeholder were synonymous terms. That an estate in the laud is necessary to support trespass, *quare clausum fregit,*see the following cases; *Hoe v. Taylor, (Croke Eliz.*413,*)*also *Wilder*v. *Bridgewater, (Do*421.)

Hale, Judge.

It is contended on behalf of the Defendant, that the force of the trespass was spent upon *John C. Stanly,*and only reached the Plaintiff’s as an injury in its consequences, and that, therefore they are entitled to redress by an action on the case, and not by an action of trespass *quare clausum fregit.*This is true, if *Stanly*stood between the parties as tenant of the laud.

*441if *Stanly*was on the land, vested with no rights, or clothed with no authority whatever over it, his solitary . ... „ existence upon it will not vary the rights ox the parties, nor the remedies by which those rights are to be asserted. It is therefore of importance to ascertain, what the *legal*relative rights of *Stanly*are. I say *legal*rights, because we are examining the question in a Court of Law.

*Stanly*went into possession of the land by the consent of *Blackledge*and *Jones,*agents of the Plaintiffs, and no doubt with the concurrence of the Plaintiffs themselves. It was understood by all, that the Plaintiffs were under an obligation to make him a title to the *laud;*but before that title was made, he had no legal right, either to the land, or to the possession of if, which a Court of Law Avould notice, except that if an action of trespasss was brought against him, he might justify under the license given him to enter, which would also protect hi» interest in the growing crop. In other respects, after the license to take possession had been countermanded, and ho liad notice to depart, he was in the view of a Court of Law, on the land as a stranger, and might be immediately ejected. If he was on the land as a tenant, either from year to year, or at his will, he had a title to the possession, and that title would be protected by a Court of Law ; lie must have six months notice to quit, and unless that notice was given, he could not be ejected. Such a possession, under such a tenancy, would support an action of trespass, and while it existed, the freeholder or owner of the land could not bring trespass, because allhough the freehold was in him, he had not the possession of the land, which, either actual or constructive, is necessary *i<%*support the action. When therefore, there is a possession supported by a legal right in one man, arid the freehold or fee simple is in another, the latter cannot maintain trespass *quare clausum fregit.*So if A, tenant for years, make a lease at will to B, and B is ejected, A eannot have this action upon that ouster, because al*442though the possesion of B is the-possession of A, yet the trespass which is complained of must be against the actual possession, and that was in *B. (2 Bac. Ab.*423, cited and Roll *Rep. 3.)*But a person who is in possession, without any legal right, cannot maintain the action.

I admit that any right, which *Stanly*acquired by taking possession, may be asserted by this form of action in a Court of Law, as if a mere *positum pedis*trespass was committed upon his *crop,*or upon his enclosure.

In fact, *Stanly*is in possession only under an Equity, which this Court cannot notice, although in a Court of Equity he is considered as tenant in fee simple. But this Equity does not divest the Plaintiffs of that constructive possession which is necessary to maintain this action, especially as *Stanly*had no special occupancy of the trees, on which the trespass was committed. I think the nonsuit should be set aside, and a new trial granted.

Per Curiam. — Judgment reversed.