
    *Marsteller and Wife and Others v. Coryell.
    February, 1833.
    (Absent Brooke, J.)
    Demurrer to Evidence — Inferences—Case at Bar. — On the trial of an action of trespass quare clausum fregit, brought by the heirs of R. A., the defendant demurs to the plaintiffs’ evidence; and.by the evidence stated in the demurrer, it appears, thatR. A. died seized: there is no positive proof, that the plaintiffs, his heirs, ever entered after his death; but there is proof, that the defendant’s possession did not commence till a year after R. A.’s death: Held, that, on this evidence in a demurrer to evidence, it may fairly be inferred, that R. A.’s heirs entered into possession immediately upon their ancestor’s death; and that, therefore, they are entitled to recover.
    This was an appeal from a judgment of the district court held at Hay Market, rendered in May 1808. The cause had remained in this court, neglected by the parties, ever since until this term.
    It was an action of trespass quare clausum fregit, brought by Marsteller and wife and others against Coryell, for a trespass on a half acre lot of land in the town of Alexandria. The defendant pleaded the general issue. And upon the trial, he demurred to the evidence of the plaintiffs, who joined in the demurrer.
    The evidence, set out at large in the demurrer, shewed, That the title of the lot in question was originally vested in the trustees of the town of Alexandria, and that they, by deed dated the 13th May 1765, conveyed the same to James M’Leod. That James M’l^eod, by a verbal contract, sold the lot to one Joseph Watson, and pul him in possession, but made no conveyance thereof. That Watson, by verbal contract likewise, sold it to Edward Higdon and put him in possession; Rigdon died in 1772, having- by his will devised this lot to his widow Elizabeth Rigdon; who sold it, by verbal contract, and delivery of possession, to Richard Arell. That, in the meantime, James M’Eeod had died, leaving Robert M’Eeod his son and heir at law; and that Robert M’Eeod, by deed dated the 15th September 1784, conveyed the lot to Arell. That Arell continued *lo hold possession during his life, and died in actual possession, leaving the plaintiffs his heirs at law. And that the defendant entered upon the lot about a year after Arell’s death. This was the trespass complained of. There was no evidence to shew, that Arell’s heirs ever actually entered upon the premises after his death ; nor any evidence to shew in whom the actual possession was, or that any one was in actual possession, during the interval between the death of Arell, and the taking of possession by the defendant.
    Verdict for the plaintiffs for 1230 dollars, subject to the opinion of the court, on the demurrer to evidence, whether the plaintiffs were entitled to recover in this action? The court held that they were not, and gave judgment for the defendant; from which the plaintiffs appealed to this court.
    Nicholas, for the appellants.
    Botts and Briggs, tor the appellee.
    
      
      Demurrer to Evidence. — See monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
   TUCKER, P.

The trustees of the town of Alexandria conveyed the premises in question to James M’Eeod, who died leaving Robert M’Eeod his heir at law; he conveyed to Richard Arell, who died leaving the plaintiffs his heirs at law. Thus, the title is complete. Arell had received possession from a purchaser by verbal contract under James M’Eeod, held possession for many years, without interruption, till his death, and died in possession. Coryell took possession a year afterwards; which was the trespass complained of. The point on which the district court decided the cause, was, doubtless, that there was no entry by Arell’s heirs after his death; for until entry, the heir cannot maintain trespass against an intruder. But, as there is proof that Arell died in possession, we think that, on a demurrer to evidence, an actual possession in his heirs eo instante that he died, may fairly be presumed; and, therefore, that the plaintiffs were entitled to recover in this action.

Judgment reversed, and judgment entered for the appellants.  