
    Richmond.
    Kretzer v. Wysong.
    
      W recovered a judgment in a case of unlawful detainer against S, for a tract of land; and sued out a writ of habere facias possessionem, by virtue of which the sheriff went on the land with W, and broke and delivered to Wa twig, as and for possession. At this time, K occupied the land as tenant of S; but was not present. Afterwards W requested K to deliver the landlord’s share of the crop to the agent of W, which K promised to do; but S having obtained a supersedeas to the judgment, K delivered the crop to him. Since the execution of the writ, the land had been farmed by the tenant of W. Upon an action of quart clausum, fregit by W against K. Hem> :
    1. W could not maintain this action without a previous recovery in ejectment, or proof of his actual possession at the time of the alleged trespass.
    2. The execution of the writ of habere facias possessionem gave W no possession against K.
    
    3. The non-performance by K of his promise to deliver the landlord’s share of the crop to the agent of W, was no trespass.
    4. If K had been ousted, or delivered possession to the tenant of W, prior to the alleged trespass, the right of action for the trespass enured not to W, but to the tenant.
    This was an action of trespass quare clausum fregit, in the Circuit Court of Jefferson county, by Wysong against Kretzer. On the trial, the defendant demurred to the evidence, and the jury found a verdict for the plaintiff for 180 dollars, subject to the opinion of the Court upon the demurrer.
    The facts of the case are : That on the 17th of July 1837, Wysong as plaintiff in a case of unlawful deGainer, against W. B. Selby, obtained a judgment against him for a tract of land in the county of Jefferson, which was occupied by Kretzer as the tenant of Selby. On this judgment a writ of habere facias possessionem was sued out, and the sheriff went upon the land with Wysong, rode over it, and broke a twig from a tree and gave it to Wysong as and for a delivery of possession. At this time Kretzer was a tenant on the land, but was not present; though he was afterwards informed by the sheriff of what had been done.
    After this delivery of possession, Wysong requested Kretzer to deliver to his agent the share of the crop which he was to give for the rent of the land, which Kretzer promised to do; but Selby having obtained a supersedeas to the judgment in the case of unlawful detainer, Kretzer delivered the landlord’s share of the crop to him. Since the execution of the writ of possession, the land had been farmed by the tenant of Wysong.
    
    The Court gave a judgment on the demurrer for the plaintiff; and Kretzer applied to this Court for a supersedeas, which was awarded.
    
      Cooke, for the appellant, and Berry, for the appellee, submitted the case.
   Baldwin, J.

delivered the opinion of the Court.

This action of trespass quare clausum fregit cannot be maintained by Wysong the plaintiff therein, without a previous recovery in ejectment, or proof of his actual possession at the time of the alleged trespass. There was no such recovery, and such actual possession has not been proved as against the defendant Kretzer. The execution by the sheriff of the writ of habere facias possessionem, sued out by Wysong upon his judgment in his writ of unlawful detainer against Selby, the landlord of Kretzer, gave him no possession against Krelzer, and the evidence does not prove an ouster of Kretzer by Wysong: on the contrary, the evidence serves to shew that Kretzer continued in possession of the land notwithstanding the execution of the writ of habere facias possessionem, gathered the crop raised by him thereupon, and delivered to Selby the landlord’s share of the same; and the non-performance by Kretzer of his promise to deliver the landlord’s share of the crop to Wysotig’s agent was no trespass, and if Wysong had any remedy therefor, it was in a different form of action. If the evidence of possession of the land by a tenant of Wysong, after the execution of the writ of habere facias possessionem, could be regarded as incompatible Avith the continued possession of Kretzer, and as proving that he had been ousted or had surrendered the possession to that tenant prior to the alleged trespass, then the right of action for the trespass Avould enure not to Wysong, but to his tenant. It seems, therefore, to the Court, that the Circuit Court erred in rendering judgment upon the demurrer to evidence for the plaintiff, instead of the defendant in the action : And it is considered that the said judgment be reversed and annulled, Avith costs to the plaintiff in error. And this Court proceeding to render, &c. Judgment for the defendant in the action.  