
    Jenkins Greer vs. T. C. Wroe and Wife.
    Forcible Entry and Detainer. Where the plaintiff in a proceeding in forcible entry and detainer, had removed from the premises, but indicated by barring the doors of the house that he had no intention of abandoning the place, and afterwards casual trespassers entered by force and held possession for a while, and on leaving the same left the doors open, when the defendant without concert with the trespassers was put in possession under a claim and without force, he is not liable to the summary remedy of forcible entry and detainer, but only to an action by which the strength of title can be tested.
    ER05I DE KALB.
    Wroe and wife instituted this proceeding in forcible entry and detainer, before three justices of the peace in the county of DeKalb, against the plaintiff in error Greer, to recover the possession of a tract of land in said county. There was judgment before the justices for Wroe and wife, from which Greer appealed to the circuit court. It seems that the land in controversy was sold at execution sale, as the property of Mrs. Wroe then in possession and a feme, sole, Messrs. Savage & Brien becoming the purchasers. Soon after the sale she intermarried with.Wroe, and removed to Wilson county, leaving the premises unoccupied. She requested Mr. Oolms, her attorney, to look after the place, and he soon thereafter barred up the doors and windows of the house and fastened the gate. Some trespassers entered the house by force, and held possession until driven off by Mr. Colms. They left the doors, windows, and gates all open, and thereupon Greer went into possession without concert with said trespassers, and by authority of Savage one of the claimants under the sheriff’s deed; this proceeding was thereupon instituted by "Wroe and wife, the period for redemption not yet having expired. There was verdict and judgment in the circuit court, Judge CopDALL, presiding, for "Wroe and wife, from which Greer appealed.
    M. M. BeieN and Savage, for the plaintiff in error.
    CoiMS and CaNtebll, for the defendant in error.
   Caeuthebs, J.,

delivered the opinion of the court.

This is a proceeding in forcible entry and detainer. The case turns upon a single question of law, contained in the charge of the court. The law was charged to be that, “if the plaintiff had removed from the place, but inchoated by fastening the doors of the house, and the gates of the enclosure, that they did not intend to abandon the possession, and a casual trespasser oj>ened the gates and doors, and the defendant afterwards even without any concert with the trespassers, finding the house open entered under a claim, and without actual force, that he would be liable to be proceeded against in this action.” Under the facts of the case there can be no doubt, but that the charge on this point controlled the verdict. We think the charge was erroneous. The entry m such a case would not be forcible in fact or in law, in the sense of the statute giving this action, and therefore the defendant would not be liable to this proceeding, but only to an action in which the-strength of title could' be tested. True, he would be guilty of an ouster, if not tbe true owner, and subject to an action of trespass or ejectment, but not to forcible entry and detainer. It can make no' difference by wbat means and by whom tbe bouses were opened, if tbe defendant cannot be connected with it. An entry by bim peaceably and without force or violence, does not render bim liable to tbis summary remedy. If be finds tbe premises vacated, and tbe bouses opened, tbe idea of force surely cannot be connected with bis entry. How tbe means by wbicb tbe premises became vacant could affect tbe question, we are unable to perceive, unless it should appear that tbe trespasser was acting for bim, or by bis concert or procurement, in wbicb case, the force would be imputed to bim and be would be liable.

Tbe judgment will be reversed, and cause remanded.  