#### Hugh Muldrow et al. *ads.*Allen Jones.

If a person having a possessory title to land enters by *force,*and turns out a person who has a naked possession only, the latter cannot maintain *trespass*against the person so entering under *color of title ;*and if a person, having a legal right of entry on land, enters by force, though he may be *indicted*for a breach of the peace, yet he is not liable to a private action of trespass for damages at the suit of the person who has no right, and is turned out of possession.

In an action of trespass *quare clausum fregit,*the defendant may justify his entry upon the land, under the plea of the *general issue,*by showing *title*in himself to the freehold.

*Before BUTLER,*/., *at Darlington, Fall Term,*1838.

The questions arising in this case, will appear fully from the report of his honor the, presiding judge, which is as follows: “This was an action of trespass *quare domum fregit.*It appeared by the evidence of James Jones, that on the 22d of January last, the defendants, with three of defendant Muldrow’s negroes, came to the house then occupied by the plaintiff, whilst plaintiff was absent from home. Plaintiff’s son was sitting at the mill-pond for ducks with his gun; heard the defendants coming and immediately *65went to the house. Immediately after plaintiff’s son had got to the house, defendant Muldrow asked his mother what she was doing there in his possessions; she replied she was not in his possessions, she was in Tom Stephenson’s possessions. Muldrow asked plaintiff’s son the same question, and he made the same reply. James Jones, the plaintiff’s son, then sat the gun he had been using in the corner of the house. Muldrow took it, and another gun which was standing there, said they were his possession and started off with them, saying they were his property. James Jones jumped at another gun lying in the rack and got a pistol also, and told Muldrow if he did not put down the guns he was taking off he (James) would shoot him. Muldrow returned the guns to the corner, and James Jones put his gun back in the rack. James then forewarned Muldrow from touching any thing on the land. Muldrow replied, forewarn hell, I can forewarn as much as you, and ordered his negroes to punch the shingles off of a shed attached to the end of the dwelling house. They obeyed his order. He then called the negroes in the house, where plaintiff’s wife was, and he and they began to punch off the shingles, one of which fell on plaintiff’s wife. Thomas Plummer, at the suggestion of Muldrow, and upon his promise to stand between him and all danger, assisted in punching off the shingles. When they had finished uncovering the dwelling house in which plaintiff’s family were, they stripped the covering off the out houses. The beds were covered with snow and there was snow on the ground. James Jones told Muldrow that that evening’s work would probably cost him five hundred dollars; to which he replied, if you sue, go for $1000,1 am able to pay. James Jones, the witness, his mother and his brother George, a boy of about 15 years, were at home. After this, defendants went off together.

Upon his cross-examination, James Jones says that Jac. Gee et al. had recovered against his father and himself this land, and the sheriff had put Mrs. Woods, Gee’s tenant, in possession. Witness’ father had remained out of possession about a year; as soon as he ascertained that Mrs. Woods had gone out, he took possession. There was nothing in the house when plaintiff took possession; does not know that Muldrow was about taking *66possession when plaintiff went there: but he had taken part of the floor out of the house. Plaintiff had gone there on the 14th, and had remained about eight days, till the 22d, before the trespass. Plaintiff lived ten miles off, had gone down to see Mr. Cole, who lived near there; found the premises unoccupied, and believing it a good opportunity, took possession on Sunday, and sent after his things. Mrs. Woods had fowls on the dunghill and corn in the crib, but had left nothing in the house.

In reply : Thomas Stephenson had lived there before he went to Georgia, and yet claims the land. — Plaintiff went in to take possession under Thomas Stephenson. For a while plaintiff remained in the uncovered house. His mother was poorly at the time and was alarmed. The plaintiff closed.

The defendants offered in evidence the record of a recovery, J. Gee et al. v. Allen Jones and James Jones, in an action of trespass to try title. Verdict for plaintiffs, and twenty-five dollars damages, recovered at October term, 1836. Judgment and writ of *habere facias possessionem.*The clerk and present sheriff say they have searched their offices and cannot find the writ of *habere facias pos.*Wingate, late sheriff, says he does not know where it is, and Mr. Dargan says he made out the writ and gave it to the sheriff, with instructions to execute it. Mr. Wingate said he had sent a deputy named Johnson with it, who returned it executed.

Geo. W. Dargan recalled: says Pleasant R. Gee commenced an action against Jones. It abated, — was revived by his representatives who recovered. He knows that Muldrow had authority from Gee to enter under a parol contract to purchase. The action was carried on by Gee for Muldrow. The heirs of Gee executed a deed to Muldrow for the premises, after the recovery, dated 3d of April, 1837. The recovery was had against Jones as tenant of Gee. The title of Stephenson was not brought in question.

John M’Laughlin: knows the premises in dispute. Mrs. Woods moved out on Saturday, and Jones was in on Sunday morning. Muldrow had moved some of the furniture before Jones came, and Muldrow knew that Jones was there. Jones *67said he held under Stephenson. The place joins the tract of land on which Muldrow lives.

James Cole : Said some oats had been sowed on the land, he could not say by whom. They had been reaped by Jones. Stephenson once owned the land and still claims it. Muldrow complained of Jones, from the time he took possession until he turned him out. Not many days before the trespass, he heard Muldrow say he would turn out Jones, if. he had to tear down the house. He said Jones had taken possession while he was still in possession. Witness had rented the land from Muldrow this year, and expects to pay for it if called on ; he had rented it the year before, but did not have it rented at the time Jones entered.

Wiley Jones was not present at trespass, but saw the houses afterwards. Witness assisted plaintiff to cover the house. He went right at it. Plaintiff left the place, was carried to jail, and the house was torn down by Muldrow, who was put in afterward, after the arrest of Jones, by magistrates, who issued a warrant against him for forcible entry and detainer. — This closed the testimony.

As I thought this a case so entirely within the province of a jury, depending altogether on the testimony, I have reported the facts fully, that the court may have an opportunity of understanding the grounds on which the verdict is based. I will now advert to the grounds of exception to my charge: 1. In some introductory remarks, by way of explaining the nature of the action, I remarked that there was not only different kinds of trespasses, but different grades of trespass of the same kind; that any unlawful entry on another’s inclosed lands was a trespass, but not generally regarded of so serious a nature as a trespass on his inhabited domicile; that the latter approximated more nearly a trespass on the person — a proposition that cannot be very well disputed. But I remarked that every trespass depended on its own circumstances; and after it had been committed, should be remedied by such damages as a jury should be reasonably authorized to give. And I.then detailed the circumstances of the case, saying that defendant had no legal justification for what he *68had done; but that there were many circumstances which should be taken into consideration by way of mitigation — such as that defendant had been lawfully put in possession under a writ of *habere facias possessionem,*against this very plaintiff. And that if plaintiff had again intruded himself into the land, with a view to harrass the defendant by again driving him to his action, it was well calculated to excite and irritate him. That the manner of plaintiff’s taking possession ought to be regarded in the same light. — But that if plaintiff had, *bona fide,*undertaken to take possession for Stephenson, his conduct was less odious and reprehensible, particularly as it was admitted that Stephenson’s title had never been decided, and was still asserted. I do not understand the defendant’s second ground. I characterised the possession of all the parties as well as I could, and admonished the jury against the influence of passionate appeals to their feelings, on account of the treatment of plaintiff’s wife. Indeed, I endeavored to control the current which I saw setting against the defendants, as far as I could well do so, by admonition and an appeal to the judgment of the jury.” The jury found a verdict for plaintiff of nine hundred dollars.

Defendants appeal, and now move for a new trial on the following grounds: 1. For misdirection to the jury in this, that his honor, the presiding judge, charged the jury, that the action was to be considered as for the recovery of damages for injuries to the person, rather than to the possession of the plaintiff. 2. Because his honor erred in charging the jury, that the possession of the defendant, Hugh Muldrow, was not in question. 3. Because the jury disregarded the evidence, and found contrary thereto in this, that although it was proven that defendant, Muldrow, was in possession of the *locus in quo,*and the plaintiff trespassed on him, yet they found for the plaintiff. 4. Because the jury found contrary to the evidence in this, that when there was no evidence to prove that plaintiff was the tenant of T. Stephenson, the jury assumed that fact; which assumption was necessary to their finding — the plaintiff being clearly a trespasser upon Muldrow, without even an excuse, until his tenancy to Stephenson was established. 5. Because the damages, found by *69the jury, are *enormous:*and the finding in other respects contrary to law and evidence.

Curia, per Butler, J.

Before we can subject the rights of the parties in this case to the legal principles by which they are to be governed, we must state the legal positions which they occupied towards each other on the trial below. Several years before the alleged trespass, the plaintiff Jones had been in possession of the premises, as the tenant of one J. Gee. Either denying Gee’s title or wilfully holding over after the termination of his lease, Jones refused to deliver possession, and Gee, in the first instance, and his heirs afterwards, brought an action of trespass to try title against him. A recovery was had, on the ground that Jones had entered upon the land as the tenant of Gee, and could not be permitted to claim against the title of his landlord. Whether Jones had acquired any right from. Stephenson during his tenancy did not appear. By a wise and salutary principle of the law, he was bound by his relation to the landlord under whom he had entered, and was not permitted to defeat his title, by any undue advantage which he had acquired whilst he was in possession. When therefore a verdict was recovered against him, and he was removed from the possession of the land in question, by a writ of *habere facias possessionem,*(which was proved to have been done by the sheriff,) he was divested of all advantages which he had acquired before the verdict; unless indeed he had acquired a perfect paramount title to the land by purchase or legal transfer from another. In such case he would run no hazard in asserting his right as plaintiff in an action against any one in possession ; or by setting it up after giving his landlord, under whom he had entered, due notice of his adverse possession and title after the termination of his contract as tenant. It would seem that he did neither.

The present defendant, Muldrow, purchased from the heirs of Gee, and is invested with all their title ; and is entitled to claim all the advantages which they could have done, were they now in his situation. He would have a right to hold possession against Jones, as to any right that was previously adjudicated *70against him. As soon as Muldrow purchased, he put a tenant (Mrs. Woods) on the land. She continued on it about a year, and at the termination of her lease, on Saturday evening, she left the actual occupation of the house ; leaving on the premises, however, some articles, such as corn, poultry, &c. On Sunday morning, the plaintiff, Jones, took possession of the house. This was some time in the first part of January. Two or three weeks after-wards, the defendants went to the place and unroofed the house, and remained in it until the plaintiff was removed by the order of magistrates and freeholders. He now brings this action for a trespass on his rights whilst he was in possession; and the question is made — had he in fact any such right as would entitle him to recover for a violation of it, by the conduct of the defendant, who assumed to be the true owner of the land? If the plaintiff took possession of the land in right of himself, it is evident that he has no title to sustain him. His wife, at the time of the trespass, and he, afterwards, alleged that they held under one Stephenson. This is a mere naked assertion, and although it would go to show the character of the possession, as between Stephenson and the plaintiff, or any one claiming under Stephenson, it is not competent evidence to affect the adverse title of the defendant. Taken in the connexion in which it was made, it is but the declaration of one excusing his trespass or conduct by making testimony for himself. The plaintiff must therefore be 'regarded as having gone on the place by virtue of his own title, which divests him of all right, and leaves him in the attitude of a naked trespasser, who had secretly intruded • himself on the possession of the apparent, and (for aught that this court can say,) the rightful owner. He occupies the position of one who has wrongfully disseised the rightful owner, and brings his action against him for a trespass, because of a re-entry with violence. This brings up the legal question, which is fairly involved. In the contest, the defendant occupies the vantage ground of being the owner of the land; and the plaintiff has no other right than a naked possession, founded upon clandestine intrusion. Every owner of a freehold has a right to use his own estate as he pleases, provided he does not abuse his right to the prejudice of another, or violate the peace *71of the country, in the manner of asserting and maintaining such right. One may very well render himself liable to an indictment to the *state,*for a forcible entry and detainer, by taking possession of his own land; as where he does so with violence and a multitude of people, when he would not be answerable for damages to a trespasser, whom he had forcibly removed from it. No one has a right to recover damages for a trespass to land who has no right or interest in it. Damages are given to compensate for an injury to some legal right. What right has a naked trespasser on land, into the occupancy of which he voluntarily intrudes himself? He has a right to claim an exemption from personal violence, but no right to claim redress for an encroachment on his possession. The legal proposition is, that the true owner of a freehold has a right to take possession of it, subject only to his liability to be indicted for a breach of the peace, for some criminal offence prohibited by the laws of the state; but cannot be made answerable to damages for dispossessing a trespasser divested of all title. This proposition is sustained by elementary authorities, and many adjudicated cases: 3 Blac. Com., 210; 8 Barn. & Cres., 4; 7 T. R., 43— The case quoted from 4 *Johns.*R. 157, of Hyatt v. Wood, is exactly in point. The case stated is, “ that if a person having a possessory title to land enters by force and turns out a person who has a naked possession only, the latter cannot maintain trespass against the person so entering under color of title; and if a person having a legal right of entry on land enters by force, though he may be indicted for a breach of the peace, yet he is not liable to a private action of trespass for damages, at the suit of the person who has no right and is turned out of possession. — The case of Myers v. Myers, 1 M’Cord. 306, is also in point, and may be regarded as obligatory authority on this court.

I have only spoken of the apparent position of the parties on the last trial: such may not be their real position. The plaintiff, Jones, alleges that he holds under Stephenson, and that Stephenson has the paramount title to the land. If he can make this appear on another trial, he will occupy a strong position; he will not only have the advantage of actual possession, but he will be fortified with the fight. He will then be entitled to the protection *72secured by the Jaw to freehold and habitation. His right to damages will b J disputed by none; and what should be their amount, must very much depend on the motives and purposes of the defendants: these will no doubt be understood by the jury.

*Simms,*for the motion.

The final decision of this case depends on another question, upon which it is necessary to deliver the judgment of the court. Has a defendant a right, in an action *quare clausum fregit,*to justify, under the plea of the general issue, by showing title in himself to the freehold ? Upon looking into the authorities on the subject, we are satisfied that he can. The question • has never been decided in this state, but the English and New-York authorities are full and explicit on the point. In the case of Dodd v. Kyffin, 7 T. R. 350, it was decided that a defendant may give evidence of title under the general issue in such action. In the case of Argent v. Durant, the point came up again, and was fully argued : the conclusion of the court was, that a defendant could give evidence of *liberum tenementum,*under the general issue— 8 T. R. 403. The question seemed to have been conceded in the case of Hyatt v. Wood, quoted above, from 4 J. R. 157; and it may now be regarded as settled in this state. From this it will follow, that both parties on another trial will be at liberty to go into evidence of title. The question of damages, therefore, must very much depend on the rights of the parties.

The motion for a new trial is granted.

Richardson, O’Neall, Evans, and Earle, Justices, concurred.

Gantt, J.

I dissent in this case from the opinion delivered. Possession is sufficient to support the action of trespass: see Gambling v. Prince, 2 N. & M'C. 139. If the defendant, Mul-drow, had been disseised in fact, the law furnished him with an adequate 1 remedy to be restored to the possession without resorting to violence, such as was shown here, and which the law abhors. — I think the verdict should stand.