
    Davidson vs. Phillips.
    Locking the doors of a house, and keeping the keys; closing the windows, and driving a portion of stock upon 'the premises, constitute evidence of an actual i'ossession of land, which will authorize a recovery in an action for forcible entry and detainer.
    Where a party is in possession of land, whether he has been ousted of that possession, is a question of fact tor thejury.
    Where A takes possession of a house and premises, by locking the door and closing!he windows, and B applies to his agent and demands possession, which is refused, and B is afterwards found in possession of the house, claiming under an adverse ,hle to A: Held, that it was to be inferred, he got possession by breaking the doors or windows open, and that this constituted a forcibly entry, ■wllhvn the meaning of the actof 1821, c, 14, § 2,
    In tlie year 1829, Wm. Phillips, one of the defendants in error, sold to William Wickham a tract of land in Montgomery county, and executed his bond for title thereto. Wick-ham entered into possession, which he retained for two years; at the expiration of which time, he leased to Rye for one year.' Difficulties and disputes, in the meantime, having arisen between Phillips and Wickham relative to the title to the land, Phillips sued Wickham for a part of the purchase money, and Wickham filed a bill against Phillips to rescind the contract. Phillips having obtained a judgment against Wick-ham, caused an execution thereon to be levied on the land, exposed the same to sale, and became, jointly with R. L. Phillips, the purchaser. When Rye’s lease was about to expire, he requested Wickham to come and take possession, which he neglected to do. A short time before Rye left the premises, R. L. Phillips, with his consent, caused locks to be put upon the doors, and brought to the premises a stock of hogs, which he left in a pen, intending, as he said, to move himself. When Rye gave up the possession, an agent of Phillips locked the doors of the house, and fastened the wjndows, and retained the keys. A short time thereafter, the plaintiff in error applied to the agent for possession of the premises, claiming them as tenant of one M. Bell, which was refused him; nevertheless, in a few days thereafter, he was found in possession of the house and premises. The defendants in error, under the provisions of the act of 1821, c. 14-, sued' out against him a writ of forcible entry and detainer, which was determined in their favor before the justices, and before the circuit court; to reverse which proceedings, this writ was prosecuted.
    
      F. B. Fogg, for plaintiff in error.
    It is contended for Davidson, that he has a right to retain the possession, because the sale was void, Wickham having only an equitable title to the lands. Shute vs. Harder, 1 Yerger 1. By the sale of Phillips to Wickham, the possession was transferred to the latter. Rye entered under Wick-ham. Phillips, in treating with Rye for the possession, and taking an attornment from him, committed a fraud on Wick-ham, and would be compelled to restore him the possession. Duke vs. Harper, 6 Yer. Rep. 280. Davidson has a transfer of all Wickham’s title to the possession; he stands in his place, and cannot be turned out but by a person having no better right to the possession than W. This Phillips could not have, because he had given up his right to Wickham, and the purchase at execution sale was a nullity. After Wickham had made the transfer to Davidson, he made a compromise of his difficulties with Phillips, by which he gave up all his title to the land, and Phillips released him from the debt; this agreement was not in writing, and could not effect Davidson’s right to possession previously acquired from Wickham. If the possession of Davidson can be connected with that of Wickham, the limitation of three years would bar the forcible entry and detainer.
    
      
      Thompson., for defendant in error. J ’
    Phillips’ possession was sufficient to maintain this action. It was an actual possession, and such as would have ized him to be sued in ejectment. 4 Bibb’s Hep. 389; Marshall’s Rep. 345; 5 Littel’s Rep. 215; 3 Do. 398; 1 Monroe’s Rep. 52.
    The inference is irresistible, that the plaintiff in error entered forcibly. The house was locked and the windows closed; he demanded possession, which was refused, and yet a few days after he is found in actual possession of the house. How did he get in? The key was refused to him. He had no other means of getting in but by forcing open the windows or doors, which is a forcible entry,- within the meaning of the act of 1S21, c. 14.
   TtjRLEY, J.

delivered the opinion of the court.

There are some trivial objections taken to the proceedings before the justices, which being merely as to matter of form, are not scarcely pressed, and need not occupy the attention of the court. The two points demanding the consideration of the court, are, 1. Were the defendants in error ever actually in possession of the premises in dispute. 2. Was that possession ousted by the forcible entry and detainer of the plaintiff in error.

The writ of forcible entry and detainer is given in order to preserve the peace and harmony of society, by preventing persons who have conflicting titles to the same lands, from taking redress of their wrongs into their own hands. It is therefore expressly provided, that title shall never be inquired into in this mode of proceeding, the only question being, who was in possession, and how that possession was lost? If it were otherwise, serious would be the consequences to society; for when the title to land is to be disputed, the possession is a matter of great importance, and if it were left to be struggled for between the parties by force and violence, the peace of the community would not only be destroyed, but in very many instances bloodshed would be the consequence. Therefore, it has boon deimruned, litas un inaMai bow perfecta man’s ti-tie may be, if he enter upon the possession of another, who no title whatever by violence, he cannot protect himself against the operation of a writ of forcible entry and detainer. Even a landlord, after the expiration of the lease, cannot enter upon the possession of his tenant. 3 Marshall’s Rep. 345. What then constitutes an actual possession ? In the cases of Brumfield vs. Reynolds, 4 Bibb 388; Henry vs. Clark 4 Bibb 426; Chiles vs. Clark, 3 Marshall 347, it is said, “a person may be in possession of land without having a crop growing on it;” “or a person residing in the house, or the field inclosed by a fence, or any act done by the owner of the land after his tenant has left it, indicating an intention not to abandon, but to hold possession to himself, will continue the possession in him.”

In this case, defendants in error claimed title to the land; the tenant was about to give up possession; his landlord (the vendee of defendants) had been notified thereof, and requested to resume the same, which he declined doing, no doubt because of his bill for the recision of his contract. Defendants, to protect their rights, take possession by locking the doors of the house, closing the windows, and driving a portion of stock upon the premises. These acts are clearly evidence of an actual possession, according to the authorities above quoted, and from which the jury were well authorized in finding a possession in the defendants. It was a question of fact for their determination, and was by the charge of the court left to them. We are satisfied they found it correctly. Then the defendants having been in possession, the next inquiry is, was that possession ousted by the forcible entry of the plaintiff. This is also a question of fact, which, by the charge of the court was left to the jury, and found by them in favor of the defendants in error, as we think correctly. The proof shows, that the house was locked and the windows closed; that the plaintiff applied to the agent of the defendants and demanded possession, which was refused. How did he get it? The inference is irresistible — by breaking the doors, windows, or some other part of the house. A forcibly entry, within the very words of our act of 1821, c. 14, § 1.

There being then a possession by the defendants in error, and a forcible entry by the plaintiff in error, the judgment the court below was correct. Let it be affirmed.

Judgment affirmed. °  