
    *David Beggs v. John Thompson.
    
      A purchaser of lands at sheriffs sale can not sustain an action of trespass for the crops where he does not obtain possession by ejectment.
    This was an action of trespass, guare clausum fregit, adjourned from the Supreme Court of Columbiana county, upon a case agreed, embracing the following facts:
    
      Thompson, the defendant, mortgaged the premises in question to Robert Patterson and others. A scire facias was prosecuted upon the mortgage; the land taken in execution, sold by the sheriff, and purchased by the plaintiff. At May Term, 1823, the court made an order confirming the sale, and the sheriff made a deed to the plaintiff. The defendant was in possession; the plaintiff demanded possession of him, which was refused. He then served a notice on him in writing, and instituted a proceeding in forcible detainer, in which the plaintiff obtained a judgment; that was reversed on certiorari. In April, 1824, the defendant, who had been in possession of the premises, and used them and received the crops from the time of the levy, abandoned that possession, and the possession was taken by the plaintiff; after which he brought this action to recover of the defendant for the rents and profits of the land. And whether it could be supported was the question submitted to the court.
    J. C. Wright, for the plaintiff:
    This is, in substance, an action of trespass for mesne profits. It is objected to the plaintiffs having judgment:
    1. That he can not recover without having obtained the possession by judgment and habere facias.
    
    
      2. That he can not recover, after possession, for any time before possession, or any rate for any time anterior to the time of the demise laid in the declaration in ejectment.
    A person having title may enter peaceably into possession, without judgment or suit, and having so entered, his possession inures according to his title. Jackson v. Horiland, 13 Johns. 235, Adams on Eject. 98.
    A sheriff’s deed relates back to the time of sale. Jackson v. Dickinson, 15 Johns, 309; Adams Eject. 71.
    Where once an entry has been made, it will have relation *to the time the title accrued, so as to enable the claimant to recover the mesne profits from that time. Adams Eject. 335.
    A sheriff, though not bound to do so, may put a purchaser into possession, and any person having title may enter into possession, if they can do so without breach of the peace. Chief Justice Gibbs, in Rogers v. Pitcher, 6 Taunton, 202, says, “I am aware it has, in several places, been said, that the tenant in elegit can not obtain possession without an ejectment, but I have always been of a different opinion. There is no case in which a,party may maintain ejectment, in which he can not enter. The ejectment supposes he has entered ; and that the lessor may do it by another, and not enter himself, is not very intelligible.” This is supposed to be the correct doctrine on the subject; and would not the contrary doctrine border upon absurdity? A trespasser intrudes into my farm, and uses and abuses it for several years, until my patience being exhausted, I threaten to bring ejectment. When he abandons the place, and is about to clear out, I can not sue him for the trespass, although complete. I must bring ejectment to recover possession of the premises that are left vacant, on purpose to let me enter to avoid the necessity of the suit; and in the meantime the trespasser leaves the country; my remedy for the mesne profits is gone, and I have a bill of costs to pay in the ejectment! This is unreasonable; and where the reason of the rule fails, or rather the want of reason, shows that the rule was never founded in law.
    
    The refusal of a judgment debtor, whose land is sold on execution, to give possession, makes him a trespasser. He is not a tenant, or liable for use and occupation, which, unless upon express promise, is a statutory remedy. 11 Geo. ch. 11, p. 19, adopted in New York laws, vol. 1, p. 146, but never adopted in Ohio. He is liable to be turned out as a trespasser, and is responsible, in that character, for the mesne profits. Smith v. Stewart, 6 Johns. 49.
    A lessor of the plaintiff in ejectment may bring trespass for the mesne profits in his own name, or that of his anonymous lessee. If in bis own name, he may recover for rents and profits for the time anterior to the demise in the ejectment-; *and he may do the same if the recovery in ejectment be against the casual ejector. Adams Eject. 330.
    In trespass for the mesne profits, it is not necessary to prove a writ of habere facias executed. Bul. H. P. 87 ; Adams on Eject. 336. And .in such case, where the judgment has been in favor of the casual ejector, and no habere executed, the defendant may controvert the plaintiff’s title. 2 Strange, 960; Esp. N. P. 495. The defendant can not pay the money into court, because the action is for a tortious occupation, from the time the tenant had notice of the title of the plaintiff. 2 Wils. 115; Esp. N. P. 495. If the plaintiff seek to recover the profits antecedent to the demise, or bring ms action against a precedent occupier, the record in ejectment can not be given in evidence, but the plaintiff must prove Ms title and an 
      
      entry on the land. Bal. N. P. 8; 2 Burr. 667; Adams on Eject. 334. It would seem, from these authorities, there could be little doubt as to the law in such cases. The action of trespass existed in use long before the action of ejectment, and give place to it only so far as necessary to try the right of possession to land, and effect a restoration of the possession to the owner, if ejected. This the action of trespass could not do; it only gave damages for the trespass till the time of suing out the writ. The action of trespass still remains with all the virtue it ever had. We may admit, for the sake of the argument in this ease, that a legal right to possession does not carry with it evidence of legal possession sufficient to maintain trespass, because here the plaintiff was in possession before suit. The true rules are supposed to be: Where trespass for mesne profits isbrought, a plaintiff who has recovered in ejectment, and seeks to recover only from the time of the demise laid in his declaration, the record in ejectment is conclusive; but if he seek to recover for a longer time, as to that longer time the title and possession are open to litigation ; and where he seeks to recover, having obtained possession without ejectment, the whole subject, as to title, is open .for controversy; except, that when the defendant is a judgment debtor, and the plaintiff a purchaser at sheriff’^ sale, the defendant can not set up an outstanding title in a stranger. 3 Caine, 188.
    *Loomis and Metcalf, for the defendant:
    Trespass can not be sustained for an injury to real or personal property without possession. In the case of personal property possession may be merely constructive; but in the case of real property the possession must be actual.
    
    The general ownership of goods and chattels carries with it prima facie evidence of possession; but if the general owner parts with his possession, and a bailee have, at the time of an injury committed, an exclusive right to the use, the evidence of possession, by the general owner, is rebutted, and he can not maintain trespass, but case only. Putnam v. Wiley, 8 Johns. 432; Van Brant v. Schenck, 11 Johns. 385.
    The general ownership of lands does not carry with it prima facie evidence of possession. Actual possession is an essential ingredient in the title requisite to support trespass guare clausum fregit.
    
    A right of possession, not coupled with- a possession in fact, at the time of an injury committed, is not sufficient. That action is grounded upon an injury to the possession, and can not be maintained, unless the plaintiff has actual possession, though he may have the freehold in law. 2 Phil. Ev. 132, 133.
    The adjudications upon this point are numerous, and appear, so far as our researches have extended, to have been uniform from an early period in judicial history to the present time. A brief review of authorities will test the correctness of this remai'k.
    Only the person who has the possession in fact of the real estate, to which an injury has been done, can maintain an action of trespass, quare clausum freg'it; a general property not being in the case of real property, as in the case of personal property, sufficient to found this action upon. 6 Bacon’s Abr. 566; Bro. Tresp., pl. 38, pl. 315, pl. 346; 2 Lev. 209; 2 Bulstr. 268.
    A person in whom the freehold of the land is can not maintain the action for an injury to the land whilst in the possession of another. 2 Roll. Abr. 554; 6 Bacon Abr. 566.
    An heir at law may make a lease of land, descended to him before entry; but though he have an indisputable right *of possession and an absolute estate, he can not maintain trespass until he have, by entry, regained the possession in fact of the land. Browning v. Beston, Plowd. 142.
    If a man who once had possession in fact of real estate quit it, or be deprived thereof, he can not maintain an action of trespass, quare clausum fregit, for an injury done thereto, which was done betwixt the time of his quitting or being deprived of the possession, and his regaining the same by re-entry. Bro. Tresp., pl. 365, and 6 Bac. Abr. 567.
    Possession alone is a sufficient title to sustain trespass, quare clausum fregit, against a wrong-doer. Van Nuys v. Ferhem, 1 Johns. Cas. 82.
    It is possession at the time of the injury committed, and not at the commencement of the suit, that is requisite to maintain trespass for an injury to real estate. In fact, when an injury has been done to a person’s land, whilst he was in possession, he may bring trespass after he has abandoned the possession, and sustain the action. Bro. Tresp., pl. 12; 2 Roll. Abr. 569; Plowd. 431; 6 Bac. Abr. 568.
    The defendant in this cause having had peaceable and lawful possession of the premises at the time it is claimed, the plaintiff’s title accrued, and the plaintiff never having had a possession in fact until’ a period subsequent to the injury alleged, the foregoing authorities conclusively show that he can not recover in the form of action which he has elected. They clearly specify the injuries to which this species of action is to be limited; and define with certainty the title which is requisite to its successful prosecution. They clearly establish the fact that the law on this subject has been settled in England for centuries, upon principles free from ambiguity, and within limits exempt from doubt or uncertainty. But we rest not here. The decisions in onr own country are equally clear, pointed, and conclusive.
    This question was presented for adjudication in the case of Campbell v. Arnold, 1 Johns. 511. On the trial of that cause the plaintiff proved that in the year 1776 he was in the actual possession of the premises on which the trespass was committed; that at the time of the defendant’s entry upon the land and the commission of the trespass, one Archibald was in possession as a tenant, under *the plaintiff, to whose agent he paid rent. Upon the production of this evidence the defendant’s counsel moved for a nonsuit, upon the ground that the plaintiff was not in the actual possession at the time the trespass was committed. The motion was overruled, and a verdict passed for the plaintiff. Upon a motion to set aside the verdict for misdirection of the judge, the court said: “ The rule appears to have been long and well established that there must be a possession in fact of the real property to which the injury was done, in order to entitle a party to maintain an action of trespass guare clausum fregit. A general property in the case of real estate is not, as in the case of personal, sufficient to support this action.”
    Here is an express adoption of the principle for which we contend, and a direct restriction of the remedy by trespass, guare clausum fregit, to an invasion of the actual possession. A person having title to real estate, not coupled with possession, is not, by this decision, left remediless. Another form of action may be successfully prosecuted.
    In the case of Tobey v. Webster, 3 Johns. 468, the authority of the preceding decision was expressly recognized, though Kent, Chief Justice, said he had been of a different opinion before looking into the cases, after which he concurred with the other judges in the opinion delivered in the case of Campbell v. Arnold. The principle that a party must have actual possession of real property to enable him to maintain trespass, is also advanced in the case of Stuyvesant v. Tompkins and Dunham, 9 Johns. 61.
    The case of Wickham v. Freeman, 12 Johns. 183, establishes the principle that to sustain the action of trespass the plaintiff must show an actual possession of the premises, or that he is entitled in remainder or reversion, or in case the premises are vacant, that he has the legal title which draws to it the' possession. The facts in this case show that the plaintiff was not in actual possession; that he did not claim in remainder or reversion, and the premises were not vacant. The action of trespass could not, at common law, be sustained by a remainder-man or reversioner; that remedy was given them in England and New York by statute. No such statute exists in Ohio, and of course the action could not be ^sustained in our courts. In the last-mentioned case the decision in Campbell v. Arnold is referred to as settling the law on the subject now under discussion. See also Taylor v. Townsend, 8 Mass. 411; Starr et al. v. Jackman, 11 Mass. 519.
    It is conceded that a judgment in ejectment, against the tenant in possession, is, in an action for mesne profits, conclusive evidence of the plaintiff’s title from the time of the demise laid in the declaration, and that a judgment by default against the casual ejector, with a writ of possession executed, will have the same operation. The defendant can 'not, in either case, put the plaintiff to proof of actual possession, because, in the one instance, the plaintiff’s possession is sufficiently .shown by the common consent rule, in which lease, entry, and ouster are confessed; and in the other, an entry under the writ of possession will be referred, by fiction of law, to the time of the demise. 2 Phil. Evidence, 211, 212.
    But the judgment in ejectment is conclusive only as to the subject matter. It is conclusive of the right of possession and title only from the time of the demise; beyond that period it proves nothing. Van Allen v. Rogers, 1 Johns. Cas. 283; 2 Phil. Ev. 210, 211; Aslin v. Parkin, 2 Burr. 668.
    Should the plaintiff seek to recover for a period anterior to the time of the demise, it would be competent for the defendant to controvert his title, and possession being an essential ingredient in a complete title, would have to be proven. It has been decided iin Pennsylvania that the plaintiff, in an action of trespass for mesne profits, after a recovery in ejectment, shall not give evidence of' the annual value of the premises beyond the time of the demise laid on the declaration, though he be the lessor of the plaintiff in ejectment. Shotwell v. Boehen, 1 Dallas, 172. And Lord' Mansfield was careful to remark, in the case of Aslin v. Parkin, 2 Burr. 668, that it appeared in evidence that the time of the defendant’s occupation was within the time laid in the demise. The better opinion appears to be that the plaintiff, in an action for mesne profits, shall recover only from the time of the demise. But admitting *that he may go beyond that period, and that by entry after a judgment in ejectment, his possession shall he referred to the time when his title accrued, and that he shall not be put to proof of actual possession; the plaintiff in this cause can derive no benefit from the concession. Had he successfully prosecuted an action of ejectment, and thereby established a legal title, he would have been entitled to all the advantages flowing from the judgment and the consequential action for mesne profits. But his entry not having been made after a judgment in ejectment, he can thereby derive no benefits that would not have resulted had that action never been invented.
    The position assumed by the plaintiff’s counsel, that a person having title may enter peaceably into possession without judgment or suit, is granted. We are willing to go further, and concede that he may enter in all cases without suit, when ejectment can be sustained, and even enter forcibly without making himself liable to a civil action. Title would be an adequate shield for his protection against any civil action that might be instituted for such entry. But it is said that, having entered without suit, his possession inures according to his title. “Adams on Ejectment,” one of the authorities quoted in support of this position, is, unfortunately, not within our reach at this time; but, from our recollection of the doctrine advanced in that work, it is believed that, they do not directly controvert the principles for which we contend.
    But should it be ascertained that they do, we reply that they are not of sufficient authori ty to overturn the numerous decisions which we have quoted. The case of Jackson v. Horiland, 13 Johns. 235, also cited in support of the foregoing position, merely shows, that a party having' title may enter without the aid of the law, but it does not establish the principle, that an entry without suit will refer his possession to the time his title accrued, so as to enable him to maintain trespass for an injury committed before he ever had actual possession. In the last-cited case, no entry whatever was made during the term recovered in ejectment.
    It is believed that there is no case in which an entry, without suit, will enable a person to maintain trespass guare *clausum fregit, for any injury committed upon lands before he ever had a possession in fact, or when he was not in actual possession, unless, perhaps, by a disseizin for an injury committed between the time of his disseizin and re-entry.
    It is said by the court, in Tobey v. Webster. 3 Johns. 470, thipt “the re-entry in such cases deduces the possession from the time of the first disseizin, and an action'of trespass may be maintained,” but it is expressly said by the court, in the same cause, that the possession can not be rendered effective by relation in any other case. The plaintiff in this cause will not pretend that he was disseized, as the defendant was in lawful possession until his title accrued, and as he never had a possession, in fact, until after the reception of the rents and profits to recover the value of which, this suit has been instituted.
    It is clear, that by common law, in case of intrusion, abatement, or deforcement, the party kept out of possession can not maintain trespass against wrong-doer; and the reason assigned is, that that mode oí redress is calculated merely from injuries committed on the land while in the possession of the owner. The statute of 6 Ann, ch. 18, sec. 5, declaring persons continuing in possession of an estate, after the determination of their interests, trespassers, shows that they were not viewed in that light,' and could not be made liable, in that character, at common law.
    Tappan, for the plaintiff, in reply :
    A multitude of authorities are cited to prove, that to maintain this action the plaintiff must have possession. This is not disputed. The plaintiff must have actual or constructive possession. Here the plaintiff had actual possession at and before this suit was brought. He claims to recover damages for a time before the actual, and while he had only the constructive possession; and whether he' can so recover, is the only question. Now, there is no authority, either of those cited by the defendant’s counsel or others, which says that the plaintiff can not recover, except the cases in Johnson. No case in the books supports the dicta that the plaintiff in trespass can recover damages only for the time he had 
      actual possession. The cases cited in the ^opening argument prove that in trespass for mesne profits, the record of a recovery in ejectment is conclusive as to the time laid in the demise; and also, that the plaintiff may recover for time, anterior to the demise; upon other proof. This shows that the law is not as contended for by the defendant’s counsel. The plaintiff here has taken peaceable possession; is he in a worse situation than he would be had he been put in possession by the sheriff? In the other case he would undoubtedly recover for the whole time, whether the demise covered it or not. The right to recover for trespass anterior is as clear; it only is to be sustained by other evidence than .the record in ejectment. It is said that the action of trespass, for mesne profits, is something different from this action ; and the difference is neither pointed out nor perceived.
    In the case of Proprietors of Kennebeck v. Call, 1 Mass. 483, it is admitted that after actual entry by plaintiff, he may recover in this action for the time he has been held out of possession. The cases cited by defendant from 1 Johns. 511, and 3 Johns. 478, are fully considered, and shown to be erroneous by the court in the ease of Starr et al. v. Jackson, 11 Mass. 519.
    A disseizee may obtain trespass for injurious acts subsequent to the disseizure, and acts done while he was out of possession, after he has re-entered. 3. Black. Com. 210.
    But the case now before the court has been expressly decided in the case of Langdon v. Pother, 3 Mass. 215, and Gon v. Brazier, 523.
    Our statute law gives to the purchaser of lands, sold on execution, “as good and as perfect an estate,” “as was vested in the party” (defendant in error). This good and perfect estate includes the right of possession and constructive seizin of the fee. Suppose the land in question to be inclosed woods (and it does not appear but what it is), and the trespass complained of, the cutting down and carrying away timber; a good and perfect estate exists in the plaintiff, at least as soon as his deed is executed, and yet trespass upon this estate is not a trespass upon his property, according to the argument of defendant. What, then, is it? The plaintiff has purchased the estate and has a deed, as good and perfect a conveyance as the defendant himself *eould have given. The delivery of the deed is livery of seizin, if by the party, so by the sheriff. The defendant holds possession by no claim or color of right; he continues to trespass upon the plaintiff’s property, and now says because you did not bring an ejectment against me and put me out by force, you can not recover for the injury. The distinction attempted between taking possession under and by virtue of an habere, and taking peaceable possession, is not founded in law or good sense, and I apprehend can not prevail.
   By the Court :

It is impossible to maintain that the purchaser of land, in Ohio, at sheriff’s sale, can be considered as in the actual or constructive possession, in consequence of such purchase. ■ He obtains a right of possession only; and where adverse possession is persisted in, he must resort to legal process to invest himself with it. A summary process of forcible detainer is given to him, and when he proceeds in that manner, his possession can only commence from the time he obtains it, in virtue of the writ of restitution.

From a careful examination of all the authorities cited, we are satisfied that a plaintiff can not maintain this action of trespass without showing an actual possession in himself, at the time the trespass complained of is committed. The action for mesne profits, founded upon a recovery in ejectment, rests on grounds peculiar to itself. The doctrines that govern it have never been extended to cases where possession of lands, held adversely, has been obtained by other means.

The cases cited from Massachusetts do not apply. They are all predicated upon the particular provisions of the statutes of that state. There the growing crops are valued with the lands, and the whole together set off to the plaintiff in discharge of his claim. The officer is commanded by his writ to deliever seizin and possession to the plaintiff. Thus an actual possession commences, and a price is paid for the emblements. It is not so here. The land is valued without reference to the crop. The officer has nothing to do with giving possession. The person to receive it *is uncertain until the sale is effected — and at the sale the purchaser pays for the land only. The cases are essentially distinct in all their principal features. Judgment must be given for the def'endant. 
      
      NoTE by the Editor. — The doctrine of this case, that possession is necessary in the plaintiff to maintain trespass, will be found in the following Ohio cases: iv. 433 ; viii. 40; xv. 248.
     