
    
      McMillan v. Hafley.
    
    The plaintiff became purchaser of a tract of land sold by the sheriff, under execution, on the 10th November, 1804, but the conveyance was not made until the 18th July, 1805. In the intermediate time, viz. on the 10th February, 1805, the defendant committed the trespass for which the suit is brought.
    The execution issued from an order of the county court, directing Bolin, the prosecutor in an indictment, to pay the costs on the defendant being acquitted. After the order, and before the sale, Bolin conveyed for a valuable consideration to the defendant Hafley.
    
    Two questions were presented to this court.
    1. Whether the order was such a judgment as warranted the issuing an execution to sell Bolin's land?
    
    2. Whether under the circumstances above stated, the plaintiff can maintain Trespass?
    
   Cameron, J.

delivered the judgment of the court.

The plaintiff in an action of trespass, quare clausum fregit, must shew that at the time of the commission of the trespass, he had possession of the premises, either actually, or constructively.

It is admttted in the statement of the case, that the plaintiff had not the actual possession of the land in question.

Constructive possession can only exist where the party claiming has title to the land, and there is no one in actual possession, claiming under an adverse title; and as the plaintiff had no title in law, at the time of the commission of the trespass, he cannot be considered as having a constructive possession—consequently, he cannot recover in this action.

The opinion of the court being in favor of the defendant, on the second point stated in the case, it is unnecessary to decide the first point.

Let the verdict for the plaintiff be set aside and a nonsuit entered.  