
    Hannah S. Peareson v. Isaac Dansby & Thomas Nelson.
    
      Before Mr. Justice Earle, at Fairfeld, Fall Term, 1834.
    where the til?butueverhad entered or had premises,0 °fshe tresposs1”1'mire cimfsum fregit acthaf possession. 
    
    Trespass quare clausum fregit. The land in question was so^ un^er a judgement against Nelson and others, and purchased by Robert R. Pearson, to whom the sheriff conveyed 7th May, 1822. He conveyed to Hutchison I6th August, and Hutchison to the plaintiff 29th April, 1825. Nelson was in possession-from the time of the sheriff’s sale until 1830. plaintiff never entered and never had possession of the premises, actual or constructive, beyond that which the deed carries with it. Robert R. Pearson never had possession himself. He distrained for rent upon Nelson after the sheriff’s sale in 1822, and the rent was paid; but Nelson afterwards became the tenant of Dansby and paid him the rent. He cultivated the whole plantation and cleared some new land.
    The presiding judge held that the plaintiff could not recover without proof of possession or actual entry, and ordered a nonsuit, which the plaintiff now moved to set aside on the following grounds :
    1. That the plaintiff having proved title in herself, had a right to maintain the action, by virtue of a constructive possession.
    2. That the possession of Robert R. Pearson enured to the benefit of the plaintiff.
    3. That the defendants’ trespass extended to the woodland.
    
      Peareson, for the motion,
    cited 2 Haywood, 402; 2 Kent’s Com. 30; 8 Johns. 262; 1 Munf. 162 ; 8 Cranch, 249; Peters 503, 2 Black. Com. 230-3.
    
      Clarke, contra,
    cited Chitty PI. 177 ; 1 N. & M’C. 357; 1 Phil. Ev. 132-3 ; 3 M’C. 422.
    
      
      
         Reo 1 N. & M'C. 138; Bunch v. Rhodes, 3 M’Cord, 66.
      
    
   Johnson, J.

The rule laid down in Davis v. Clancy & Johnson, 3 M’Cord, 424, is, that to entitle the plaintiff to maintain trespass quare clausum fregit, for an injury done to real estate, he must have either an actual pedis possessio of the locus in quo, or a constructive possession, and that, I think, is according to the tenor of all of our cases on the point. In the first case, (the case of actual possession,) the plaintiff is entitled to recover upon his possession alone. In the second (the case of constructive possession,) the right to recover is derived from his title to the locus in quo, which draws the possession after it, and in law the possession is regarded in him until an adverse possession is clearly made out. 4 Kent’s Com. 30. Of this, a casual trespass on unimproved wild woodlands furnishes an apt illustration. (See the case of Cannon v. Hatcher, 1 Hill, 250, as covering the whole ground.)

There has been no attempt to prove an actual possession in the plaintiff; on the contrary defendants have had the contL liued and actual possession since 1822. If the plaintiff’s right to recover be referred to her title, (supposing that to be fully made out,) as drawing the possession after it, that is met by the adverse possession of the defendants, and in either view the plaintiff is not entitled to recover;..

Supposing that Nelson was the tenant of Robert R. Pearson, from whom the plaintiff derived her title, that would not invest the plaintiff with either an actual or constructive possession, for it is the title and -not the possession which she derived from him.

The attempt to sustain the action on a trespass committed; on the uninclosed woodlands, is equally unavailing. The action is for an injury done to the tract of land claimed by the plaintiff, described and existing as a whole, and not of parts of a whole. Of that, the defendants have the actual adverse possession, not that they can cover the whole with their feet, but as having that sort of actual possession of which the thing is capable — the 'pedis possessio of a part draws after it the actual possession of the whole.

There is always great disinclination on the part of the Court to turn a plaintiff round' to commence a new cause of litigation when the right of the cause is apparently with him, but there is an absolute necessity for- preserving the boundaries which the practice of the Court has prescribed in the forms of action for the various injuries to which a, man is subject in his property, person and reputation.. Arbitrary as they may have been in the first instance, many legislative enactments have been made with reference to them, and so have been the rules of practice established by the Courts, and a departure from them would lead to inextricable confusion.

Motion dismissed.

O’Neall and Harper, Js. concurred..  