
    WM. R. BERRYMAN, ADM’R. OF THOMAS, vs. ABEL KELLY.
    Where one enters under a conveyance of some colorable title for a particular parcel of land, the rule is, that possession of part is -prima facie possession of the whole, not actually occupied by another; as the documentary tillo defines the claim and possession.
    But it is otherwise, when one enters without any color of title, for then, there is nothing, by which the possession can be constructively extended beyond his occupation.
    Appeal from the Superior Court of Law of Moore County, at the Spring Term 1852, his Honor Judge Ellis presiding.
    This is an action of quare clausum fregit, originally brought by Thomas, for breaking and entering a house in his possession. It was revived by the present plaintiff, and fried on the general issue* The plaintiff gave evidence that his intestate was seised in fee of a tract of land, on which the house was situated; and that a person resided therein until March 1845, who then surrendered the possession of the premises to a son of Thomas for his father, and went away; and that the son, as the agent of his father, toek possession, and nailed up the doors and windows of the house, having in it a few turnips and potatoes, belonging to the out-going tenant. About that time, but whether before or after does not appeal’, the defendant sowed oats in a field, on a tract of landbelonging to Thomas, and also plowed another field thereon for Indian corn. It does not appear, that the house in question was within either of these fields. In a few days after the house had been shut up, as just mentioned, the defendant committed the act for which .this suit was brought, by breaking the doors and windows .of the house, and entering it — saying, at the time, that he .had given Thomas notice, that he would take possession of the house that day.
    For the defendant it .was insisted, that, at the time he broke and entered the house, the intestate was not, but the defendant was, in possession of the house.; and therefore, that .the action would not lie. But the Court .refused so to instruct the jury, and left it to them .to determine, as a question of fact, whether the plaintiff's intestate was, or was not, in possession at the time of the alleged trespass., The jury found for the plaintiff, and the defendant appealed from the judgment.
    
      Kelly, for the plaintiff.
    
      Mendenhall, for the defendant.
   Rukfin, J.

Beyond doubt, the intestate was entitled to this action for the defendant's entry into the house. To say nothing of the actual possession taken by him, through ¡his agent, the possession was constructively in him by reason of his title. For, it is settled in this country, that the -owner of land is deemed in law to be in the possession, until it actually be taken by some one else. The argument •for the defendant ivas, that he was in possession of the house, by force of the fact, that, before entering the -house) he was cultivating two fields on the tract of land, and by-reason of the rule of law, that possession of a part of a tract of land is possession of the whole.. But, the rule referred to is misapprehended, and does not apply to this case. When one enters under a conveyance of some colo-rable title for a particular parcel of land, then the rule is, that possession of part is prima facie possession of the w hole, not actually occupied by another; which may be safely acted on, as the documentary title defines the claim and possession. But it is clearly otherwise, when one entered without any such color of title ; for, there is, then, nothing by which his- possession can be constructively extended an inch beyond his occupation. This defendant set up no title, and must be taken to be a wrong-doer throughout. Consequently, his first possession of the house was constituted by the entry, for which this suit was brought. There was, therefore, error against the defendant ; for, in law,, the plaintiff was deemed in possession, and entitled to. his action of trespass for the original breaking.

Per Curiam. • Judgment affirmed.  