
    YARBOROUGH vs. PALMER.
    Western Dist.
    
      August, 1834.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    Whore a party by contract has a right to certain premises, on performance of a condition precedent, and he fails, but enters on the premises in pursuance of his contract, and the adverse party suffers him to remain in possession more than a year, if the latter afterwards enters and takes forcible possession, he will be considered a trespasser, and liable to damages.
    Where a person has a right of possession, and suffers his adversary to remain in peaceable possession more than a year, he forfeits his right to a possessory action, and has no remedy left him but the petitory.
    The right of possession and actual possession, authorise the possessor to bring an action of trespass, and it is the province of the jury to assess the damages.
    The plaintiff alleges he is the owner of a tract or strip of land, between a certain road and a creek, in the parish of East Feliciana, part of which the defendant entered into a written contract to convey to him; that he was in the peaceable possession of the land for more than a year previous to the 7th February, 1832, when the defendant illegally and forcibly took possession of the premises, pulled down the fences and made others, and still retains his illegal possession ; that he has sustained damages in consequence of the trespass, and being deprived of making his crop, to the amount of five hundred dollars ; for which he prays judgment.
    In an amended petition, the plaintiff, alleges that the defendant, with the intention of injuring him, pulled down his fences adjoining this piece of land, and left open eighty acres of cleared land, which he was deprived from cultivating, and trespassed on said land by making a road through and over it; that by reason of the said trespasses, he has sustained one thousand dollars damages, and prays judgment therefor.
    The defendant pleads the general issue; and avers, that prior to April, 1819, he purchased two hundred and fifty-five acres of land, including the disputed premises, from the plaintiff, and has been in possession, and the plaintiff is bomi(j £0 guaranty the title thereof; that the plaintiff owns a tract adjoining this one, through each of which a public road was established, and it was an object with both parties to have it run in a direct and straight line through their land, and that they obtained an order from the police jury to this effect. The road was to be run and opened at the expense of the parties to this suit. That the plaintiff, in order to acquire a corner of the above tract, of about twenty acres, agreed to do all the work, and entered into a written agreement to this effect; and that it was upon this condition he agreed to convey the said corner of land to the plaintiff, that the plaintiff failed to comply with his engagement, in consequence of which defendant entered peaceably and without violence upon this corner of land; he prays that the agreement to convey it to the plaintiff be cancelled, at the costs of the latter, and that he be dismissed with his costs.
    Upon these pleadings, the cause was submitted to a jury, upon the evidence produced by the parties respectively. The plaintiff introduced in evidence the papers of another suit in a possessory action for the same premises, between the same parties, in which he had a verdict. Witnesses were called, who proved the pulling down of fences by the defendant, and the trespasses alleged to be committed and complained of by the plaintiff, to a certain extent. The jury found a verdict for the plaintiff of one hundred and fifty dollars in damages, but omitted to decide on the written contract relative to making the road, &c.
    The defendant’s counsel moved for a new trial, on the ground that the jury did not pass on the whole case, but found damages only, without deciding on the performance or non-performance of the conditions of the contract between the parties, and which were put at issue by the defendant.
    It was in proof, that the plaintiff tendered to the defendant one hundred dollars, in full compensation for the land in contest, who refused to receive it, alleging the plaintiff had not made the road according to contract, and on that ground he refused to receive the tender. The motion for a new trial was overruled. The district judge gave judgment confirming the verdict, from which the defendant appealed.
    Where a party by contract has a right to p¿E£l a?oeof ao°ll(lition precedent, and he fails, but mises, m pursuance of his contract, and the adverse party suffers him to remain in possession more than a year, if the latter after-wards enters and takes forcible demi a trestrSdámagÍs.able
    
      Saunders, for the plaintiff.
    
      Turner, for the defendant.
   Mathews, J.,

delivered the opinion of the court.

This is an action of trespass, in which the plaintiif claims remuneration for damages, alleged to have been by him sustained in consequence of the defendant having broken the enclosures of the former by removing the fences on his land, &c. The defendant, in his answer, pleads the general issue, and sets up title to the land on which the trespass is alleged to have been committed, &c. The case was submitted to a jury in the court below, who found a verdict for the plaintiif, and judgment being thereon rendered, the defendant appealed.

The evidence of the cause shows, that the parties were separate owners of two tracts of land adjoining a public road, and that it was found- convenient to change the direction of this road, which change had the effect of severing a small portion of the defendant’s land from his tract, and leaving it in a situation to be more advantageously occupied by the , . , ° , . . r , plaintiff. An agreement was entered into between these proprietors, by which it was stipulated that the defendant sold to the plaintiff that portion of land which fell by the 1 /.it course of the new road on the innit of the tract of the latter, The consideration as the price of the property sold, was one hundred dollars, and the labor and expense of making the new road, which the vendee undertook to make at his own separate charge and expense. A principal allegation in the defence is, that this being a condition precedent, and the plaintiff never having complied with his promise and undertaking, he acquired no title to the premises in dispute. The testimony, in relation to the period or length of time during which the plaintiff was in actual possession of the land sold to him on the conditions above stated, shows that he began to use it as Ms own, and continued thus to possess it more than one year before the defendant entered, committed the trespass complained of, and took the property from the plaintiff.

Where a person has a right of possession and suffers his adversary to remain in peaceable possession more than a year, he forfeits his right lo a possessory action, and has no remedy left him hut the petitory.

The right of possession and actual possession authorise the possessor to bring- an action of trespass, and it is the province of the jury to assess the damages.

Under these circumstances, we do not believe the case properly presents any question of title. So far from the appellant having any right, forcibly to enter on, and seize the land in dispute, be had, by the lapse of time during which the appellee was suffered to remain in peaceable possession, forfeited bis right to a possessory action, and had no remedy left but the petitory. The right of possession acquired by the plaintiff and actual possession under the contract, authorise the present suit, which is simply an action of trespass. It was the province of the jury to assess his damages, which appear to us not to be excessive.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs; reserving to the defendant his right, if any he have, to sue for a rescission of the contract of sale, &c.  