
    Waller vs. Condray.
    A obtained a decree against B, in the Federal Court, and was put in possession under it; he then leased to C, who took possession and held it for three or four years. The decree was afterwards reversed upon a writ of error, for want of jurisdiction in the court rendering it. Held, that C could not be sued as a trespasser.
    
    This was an action of trespass for breaking the plaintiff’s close, and keeping possession throughout the years 1811, 1812,1813 and 1814. The defendant pleaded not guilty, within three years. To this plea the plaintiff replied, “that one Joseph Williams had obtained a decree in the federal court, against one Elisha Waller, (from whom the title was derived, and vested in Waller the plaintiff;) that a writ of possession issued upon said decree, in favor of said Williams, under which Condray was put into possession as the tenant of Williams; that the court rendering the decree, had no jurisdiction, and a writ of error was thereupon brought, upon which, there was a reversal of the decree, and restitution awarded to the heirs of Elisha Waller, (he having died in the mean time,) and that possession was kept by Condray, until the decree was reversed upon error. To this replication there was a demurrer.
    The defendant also pleaded the recovery by Williams, and the issuing of the writ of possession, and averred, that Williams was put into possession under said decree, and that he afterwards delivered the possession to the defendant. The plaintiff replied, averring the fact, that the decree was afterwards reversed for want of jurisdiction in the court rendering it, and a writ of restitution awarded, and that the plaintiff was in possession under deeds by legal title, when the trespass was committed. Rejoinder, that the legal title was vested after reversal of the decree, in the heirs of Elisha Waller, and the trespass, if any, was against them. Surrejoinder, that after the decree, and before error brought, the plaintiff purchased from Elisha Waller, (now deceased) and received a deed from him, conveying all his right, to all the rents and profits, &c. To this surrejoinder, there was a demurrer. The circuit court, upon the demurrer, gave judgment for the defendant.
    
      
       Van Brunt vs. Schenck, (11 John. Rep. 373,) Case vs. DeGoes, (3 Caine’s Rep. 261.
    
   Opinion of the court delivered by

Judge Haywood.

The first question to be determined is, will trespass lie against Condray? He came in, after possession delivered to Williams under the decree against Elisha Waller, and under a lease made to him by Williams. If one be in possession by thejudgment of a court of competent jurisdiction, and the proceedings be reversed, the entry of the plaintiff in error, will, by relation, vest the possession in him, from the time of the entry by the defendant, under the judgment or decree, and the mesne profits may be recovered against him. But if after possession taken by the defandant in error, and before error brought, he transfers the possession to another, this latter, coming in by title, and not as a trespasser, cannot by relation be made a trespasser by reversal of the judgment, and by the award of restitution to the plaintiff in error; for a fiction of law may prevent a wrong, but it cannot make an innocent man a wrong doer.

If thejudgment were rendered by a court having no jurisdiction, the entry of the recoverer would be illegal from the beginning and before reversal. But (even in such case,) the person holding under him would not be liable to an action of trespass at the suit of the disseisee, or person dispossessed by the entry. He would be precisely in the situation of one coming in under a disseisor, who had not the pretence of a judgment; and would be answerable also, to the person who put him in possession, and wqwld be, neither in the one case nor the other, a trespasser by relation. Admitting, as the pleadings state, that the court had no jurisdiction, and that therefore, this action lay against the defendant, it was maintainable before the reversal, as well as afterwards, and should have been brought within three years after the entry of the defendant; and the plaintiff cannot say, that he was hindered from suing in due time, by a void possession, taken under a void judgment.

If the action will not lie against the defendant, because he cannot be made a trespasser by fiction of law and the doctrine of relation, the plaintiff cannot succeed. And if the action will lie against the defendant, the plaintiff cannot succeed, because he is then barred by the statute of limitations. (11 Rep. 40, 47, 50, 51; 13 Rep. 22; 3 Wilson Rep. 285; 5 Cranch, 173; sed vide, Cro. Eliz. 540; Buller’s N. P. 87.

Judgment affirmed.  