Opinion
(January Term, 1815.)
1. The plaintiff in an action of trespass quare clausum fregit must show that when the trespass was committed he had either actual or constructive possession of the land. Therefore, where the plaintiff had purchased the land at an execution sale in November, 1804, but did not obtain a deed from the sheriff till July, 1805, and in the intermediate time, to wit, 10 February, 1805, the defendant committed the trespass, claiming under the defendant in the execution, it was held that the action could not be maintained.
2. Constructive possession exists only when the party claiming has title to the land, and there is no one in actual possession, claiming under an adverse title.
THE plaintiff became purchaser of a tract of land sold by the sheriff, under execution, on 10 November, 1804, but the conveyance was not made until 18 July, 1805. In the intermediate time, viz., on 10 February, 1805, the defendant committed the trespass for which the suit is brought.
The execution issued from an order of the county court, directing Bolin, the prosecutor in an indictment, to pay the costs on the defendant being acquitted. After the order, and before the sale, Bolin conveyed for a valuable consideration to the defendant Hafley.
Two questions were presented to this Court:
1. Whether the order was such a judgment as warranted the issuing an execution to sell Bolin's land.
2. Whether, under the circumstances above stated, the plaintiff can maintain trespass.
The plaintiff in an action of trespass quare (187) clausum fregit must show that at the time of the commission of the trespass he had possession of the premises, either actually or constructively.
It is admitted in the statement of the case that the plaintiff had not the actual possession of the land in question.
Constructive possession can only exist where the party claiming has title to the land, and there is no one in actual possession claiming under an adverse title; and as the plaintiff had no title at law at the time of the commission of the trespass, he cannot be considered as having a constructive possession. Consequently, he cannot recover in this action.
The opinion of the Court being in favor of the defendant on the second point stated in the case, it is unnecessary to decide the first point.
Let the verdict for the plaintiff be set aside and a nonsuit entered.
NOTE. — See Kennedy v. Wheatley, 3 N.C. 402; Graham v. Houston, 15 N.C. 232; Dobbs v. Gullidge, 20 N.C. 68; Phelps v. Blount, 13 N.C. 177; Sikes v. Basnight, 19 N.C. 157. See, also, note to Strudwick v. Shaw, 1 N.C. 34; S. c., 1 N.C. 5.
Cited: Hodges v. McCabe, 10 N.C. 82; Davidson v. Frew, 14 N.C. 5; Presnell v. Ramsour, 30 N.C. 506.
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