
    *Olinger v. Shepherd.
    July Term, 1855,
    Lewisburg.
    i. Forcible Entry and Detainer — Code of 1849. — In a case of forcible entry and detainer pending when the Code of 1849 went into operation, the subsequent proceedings may conform to the provisions of the Code.
    z. Unlawful Detalnert — Embodying: Complaint in Summons. — It seems that under the Code of 1849 a separate complaint is not necessary in a proceeding for an unlawful detainer; that the only complaint necessary is that embodied in the summons.
    3. Ejectment — Unlawful Entryt — Distinction.—The distinction between an action of ejectment anda proceeding for an unlawful entry and detainer.
    
      4. Unlawful Detainer— Right of Possession Unnecessary  — In a proceeding for an unlawful entry or detainer, if the defendanthas entered unlawfully, the plaintiff is entitled to recover without any regard to the question of his right of possession: And this, though the land from which he is ousted is the land of the commonwealth or of the party who ousted him.
    5. Unlawful Entryfl — What Possession Necessary— The possession to which the proceeding for unlawful entry will apply, is not confined to actual occupancy or enclosure; hut it is any possession which is sufficient to sustain an action of trespass. And thus actual possession of a part of a tract of land under a bona Me claim and color of title to the whole, is such a possession of the whole or so much thereof as is not in the adverse possession of others, as will sustain this proceeding.
    6. Evidence — Extent of Possession-Invalid Deed.] — A deed, though it may he invalid to pass the title it purports to convey, may he admissible evidence as a link in plaintiffs chain of title to show the hounds of the land claimed hy him, and the extent of his possession.
    On the 3d of June 1850, John C. Olinger, the plaintiff in error, exhibited his complaint before a justice of the peace of Tee county, that Alfred Shepherd, the defendant in error, had unlawfully turned him out of possession of a certain tenement, containing by estimation two hundred acres of land, with the appurtenances, lying and being in the county aforesaid: whereof he prayed restitution of the possession. A warrant was accordingly issued in the form prescribed *by the act of February 12, 1814, 1 Rev. Code, ch. 115, p. 455-459, which was then in force. The warrant was duly executed and returned, an order of survey was made and executed, and the case was continued from time to time until the 18th of October 1852, when the defendant pleaded “not guilty,” to which the plaintiff replied generally; and issue was joined thereon. A verdict was found for the plaintiff, and that he recover from the defendant the possession of the premises in the complaint and warrant mentioned; on which a judgment was rendered accordingly.
    On the trial of the cause, the plaintiff offered to give in evidence a deed purporting to be a deed from Alexander W. Mills, as clerk of the County court of X^ee county, to John C. Olinger for forty-eight thousand two hundred acres of land in said county; which deed was duly recorded, and recites that a tract of land lying in said county, containing forty-nine thousand two hundred acres, had been returned delinquent in the name of the heirs of Nathaniel Taylor, for the nonpayment of taxes due thereon for the year 1834, which taxes, with the damages thereon, chargeable by law upon the said tract of land, amounted to the sum of four dollars and ninety-two cents; and the said tract having been duly advertised according to law, was offered for sale at public auction for cash, at the October court held for said county, at the court-house, on the 21st of October 1834, or so much thereof as would be sufficient to discharge the said arrears of taxes and damages, when the said Olinger offered to pay the said sum of four dollars and ninety-two cents for forty-eight thousand and two hundred acres; and no person offering to pay the same for a less quantity of land, it was bid off to the said Olinger; and that the said Olinger had returned to the court a fair plat and certificate of his having the same surveyed and laid off in pursuance of an act of the ^general assembly; which was received by the court and ordered to be recorded. To the introduction of which deed the defendant- objected, unless the plaintiff would first give in evidence a plat and certificate of survey made pursuant to the act of the 10th of March 1832, and all other proceedings of record required by the act in accordance with the provisions of which the deed purports to have been made; but the court overruled the objection. Whereupon the defendant further objected to the introduction of the deed: First, because the deed recites that the delinquency of the land thereby conveyed was in the name of Nathaniel Taylor’s heirs; whereas the commissioner’s books for the county of Tee for the year 1834, introduced by the defendant, show said land to be listed in the name of “Taylor’s heirs;” and the delinquent list of the sheriff of said county for said year, and the list of sales of lands delinquent for said year, introduced as aforesaid, show that no delinquency or sale of land occurred, or was made in said year in the name of Nathaniel Taylor’s heirs. Secondly, because the deed, in its metes and bounds, varied from the plat and certificate, of survey. Thirdly, because it appeared of record that the return of the sheriff of delinquent land for the year 1834 was made at the October term of the county Court for said year, instead of the August or September term thereof, as the law required ; and it appearing from the list of sales aforesaid that the sale of the land in the deed mentioned was also made at the October term of the court, it could not have been advertised according to law, as recited in the deed. Fourthly, because the affidavit required by the 3.7th section of the act of 10th of March 1832 was not attached to the list of sales aforesaid. And fifthly, because the deed upon its face did not state all the particular circumstances of title, as required by the 20th section of the said act. But the court overruled these objections also, and permitted the deed to *be given in evidence to the jury. To which opinions of the court the defendant excepted.
    The plaintiff having given in evidence the deed aforesaid, offered no evidence tending to show that Alexander W. Mills was clerk of the said county at the time the deed was executed. A patent to Nathan Fields, Nathaniel Taylor and John Johnston, dated the 30th January 1796, for sixty-two thousand acres of land, was given in evidence by the defendant; and these were the only conveyances of title exhibited in the cause. The plaintiff introduced a witness, whose evidence tended to prove that the forty-eight thousand two hundred acres of land claimed by the plaintiff is a part of the sixty-two thousand acres embraced in the said patent. The defendant gave in evidence a certified printed list of the auditor, made out and deposited in the clerk’s office of Bee county, pursuant to the act of 1831, of lands forfeited and vested in the president and directors of the Biterary fund, at the sales of 1816, which list embraced a tract of sixty-two thousand acres in the name of Nathan Fields, Nathaniel Taylor and John Johnston. The plaintiff offered no evidence to show that the said tract was redeemed; but showed that forty-nine thousand two hundred acres of land were charged' on the commissioner’s books in 1834 in the name of Taylor’s heirs; that the same was returned delinquent in that year and sold; that the plaintiff took possession of part of the land purchased by him at the time the deed from the clerk was executed, and has continued in possession thereof up to the present time; that the said land was charged to the plaintiff on the books of the commissioner in 183S, and has continued so charged, without delinquency, up to the present time, and that it covers the land in controversy, of which the defendant took possession in the spring of 18S0.
    The only evidence tending to prove that the plaintiff *ever had actual possession of- the land in controversy, was that he had actual possession of another portion of the land embraced in his deed, as above stated, and there was also evidence tending to prove that the plaintiff refused to allow Barron, who had paid him for ranging in the adjoining neighborhood the previous year, on land in the plaintiff’s deed, to range cattle on the land in controversy for the sum offered by him to the plaintiff, and that Bewis also ranged at the same place Barron did, a different year, by leave of the plaintiff.
    The defendant offered in evidence a copy of an entry for two hundred acres of land, and of a survey .for one hundred and sixty-five acres of land, dated, the former February 25th, and the latter May 13th, 1850, made by and for him as assignee of William N. G. Barron, by virtue of a Virginia land office treasury warrant, No. 17,954, dated the 26th September 1849; also a receipt of the register of the land office, dated February 27, 1852, for the plat and certificate of the survey aforesaid. A witness testified that the survey made by the plaintiff in this cause embraced one improvement of from twenty-five to twenty-seven years’ standing, and another made twenty or twenty-five years ago; one of which was abandoned and vacant when the plaintiff took possession under his deed, and before the sale.
    Whereupon the defendant moved the court to give the jury the four following instructions :
    1. If they believe from the evidence that the land claimed by the plaintiff is part of the same land patented to Nathan Fields, Nathaniel Taylor and John Johnston on the 30th day of January 1796 for sixty-two thousand acres, and that the title conferred by said patent was forfeited to the president and directors of the Biterary fund in 1816, and that neither of said patentees nor any one claiming under them ever redeemed *'said land, then the deed under which the plaintiff claims confers no title, and the jury must find for the defendant.
    2. If they believe from the evidence that the land embraced in the deed under which the plaintiff claims was forfeited to the Biterary fund in 1816, and has not been since redeemed, or that the proceedings upon which the said deed is founded are irregular, then it confers no color of title upon the plaintiff, and the jury must find for the defendant.
    3. If they believe from the evidence that the title to the land embraced in the plaintiff’s deed was forfeited to the Biterary fund and not redeemed prior to the alleged delinquency thereof in 1834, and that the defendant entered and surveyed the land in controversy in 1850, and returned a plat and certificate thereof into the land office more than six months before the trial of this cause, then they must find for the defendant.
    4. If they believe from the evidence that the survey upon which the plaintiff’s deed is founded omits to state that it did not embrace improvements, and they believe from the evidence that it did include improvements, then it is insufficient to support the said deed, and they must find for the defendant.
    ' But the court refused to give the said instructions; and instead thereof, instructed them, that if they shall believe from the evidence that the plaintiff purchased the land in controversy under a sale by the sheriff, and received a deed therefor, and took possession of said land under said deed, and held possession thereof more than seven years under said deed and before the defendant entered thereon, then the jurj’ must find for the plaintiff, notwithstanding they might believe the same land was forfeited to the president and directors of the Titer-ary fund in 1816. To which opinion of the court refusing to give the four instructions moved *for by the defendant, and giving the instruction instead thereof as aforesaid, he also excepted.
    The judgment of the County court was afterwards reversed by the Circuit court of Lee, on a writ of supersedeas; whereupon the plaintiff applied to this court for a su-persedeas to the judgment of the Circuit court, which was awarded.
    Baldwin, for the appellant.
    B. R. Johnston, for the appellee.
    
      
       Unlawful Detainer — No Plea — Effect.—See the principal case followed in Frazier v. V. M. I., 81 Va. 59.
    
    
      
       Unlawful Detainer. — See monographic note on “Unlawful Detainer” appended to Dobson v. Culpepper, 23 Gratt. 352.
    
    
      
       Ejectinent — Unlawful Detainer — Distinction between. — The principal case was cited in Power v. Tazewells, 25 Gratt. 789, as to the distinction between the action of ej ectment and the proceeding for unlawful detainer.
    
    
      
       Unlawful Detainer — Right of Possession Unnecessary to Sustain Proceeding. — Tn accord with the proposition laid down in the fourth headnote, see the principal case cited in Davis v. Mayo, 82 Va. 99; Mears v. Dexter, 86 Va. 834, 11 S. E. Rep. 538; Moore v. Douglass, 14 W. Va. 734; Hays v. Altizer, 24 W. Va. 506; Duff v. Good, 24 W. Va. 685, 687; Hukill v. Guffey, 37 W. Va. 453, 16 S. E. Rep. 550; Voss v. King, 38 W. Va. 615, 18 S. E. Rep. 765.
    
    
      
       Unlawful Detainer, — See monographic note on “unlawful Detainer” appended to Dobson v. Culpeper, 23 Gratt. 352.
    
    
      
       Unlawful Entry — What Possession Necessary to Sustain the Proceeding. -See the principal case cited in Norfolk City v. Cooke, 27 Gratt. 438; Moore v. Douglass, 14 W. Va. 732.
    
   MOiSTCURB, J.,

after stating the case, proceeded:

The first objection taken to the judgment of the County court is, that the proceeding, having been commenced before the Code took effect, should have been concluded under the law which was then in force, and should not thereafter have conformed, as it did, to the provisions of the Code.

I think the case comes within the exception contained in the Code, ch. 126, $ 2, p. 800, and that the proceedings had therein after the Code took effect properly conformed to its provisions. The only difference between the act of February 12, 1814, 1 Rev. Code 455, under which this case was commenced, and the Code, ch. 134, p. SS6, under which it was concluded, seems to be in the mode and form of proceeding. Each provides a summary remedy for the same wrong, to wit, a forcible or unlawful entry, or an unlawful detainer. The same evidence which was necessary to sustain the remedy under the old law is necessary to sustain it under the new; except in this, that under the new law the complaint is general, of an unlawful withholding from the plaintiff the premises in question; and may be sustained by evidence of such unlawful withholding, whether the possession was acquired by the defendant forcibly, unlawfully, or lawfully and peaceably’; whereas, under the old law, *the complaint was several, of a forcible, or an unlawful entry, or an unlawful detainer; and the subsequent proceedings and the evidence, conformed to the nature of the particular complaint. In all cases, however, whether under the old law or the new, to sustain the complaint it is necessary for the jury in effect to find that at the date of the complaint the defendant unlawfully withheld the possession from the plaintiff, and that he did not so withhold it for three years before. Such was the effect of a special finding for the plaintiff in the form prescribed by the old law, and such is the effect of a general finding for the plaintiff under the new. The complaint under the new law is, “that the defendant is in possession,” and as it is said, ! ‘unlawfully withholds from the plaintiff the premises in question. ” The defendant either pleads or makes default ; and, in the former case, his plea is “not guilty.” Whether he pleads or makes default, a jury is impaneled to try “whether he unlawfully withholds the premises in controversy. ” If it appear that the plaintiff was forcibly or unlawfully turned out of possession, or that it was unlawfully detained from him, unless it also appear that the defendant has held or detained the possession for three years before the date of the summons, the verdict shall be for the plaintiff, &c. But it is said that the complaint in this case was in the form prescribed by the old law, that the defendant unlawfully turned the plaintiff out of possession; and did not charge, as the complaint under the new law does, that the defendant, at the date or exhibition of the complaint, was in possession and unlawfully withheld from the plaintiff the premises in question; and it is therefore contended that the issue on the plea of not guilty did not involve these facts, and that they were not found by the jury in their verdict for the plaintiff. I think these facts were, in effect, involved in the issue and found by the jury. The complaint *not only charged that the defendant unlawfully turned the plaintiff out of possession, but prayed restitution of the possession; which implied that the defendant still withheld the possession from the plaintiff. The jury was impaneled to try whether the defendant unlawfully withheld the premises in controversy, which was in effect the issue on the plea of not guilty. The verdict of the jury was for the plaintiff, and “that he recover from the defendant the possession of the premises in the complaint and warrant mentioned. ’ ’ The only effect which the form of the complaint could have had upon the case was to require proof that the possession of the defendant was acquired by an unlawful entry. This objection was not made by the defendant in the County court. On the contrary, if it was erroneous to conform the proceedings which occurred in the case after the Code took effect, to the provisions thereof, he committed the first error by pleading “not guilty.”

Before I leave this branch of the subject, it may be proper to say, by way of explanation, that I do not consider a separate complaint to be now necessary, but the only complaint which the present law seems to contemplate, is embodied in the summons.

The other objections taken to the judgment of the County court are to the admission of the deed mentioned in the first bill of exceptions as evidence to the jury; and to the giving and refusing instructions, as mentioned in the second bill of exceptions.

This case seems to have been treated, both in the County and Circuit courts, as an action of ejectment, instead of an action of unlawful entry; and to that cause the supposed errors which have arisen in the case are justly attributable.

There is a material difference between an action of ejectment and an action of forcible or unlawful entry. The title or right of possession is always involved *in the trial of an action of ejectment. The plaintiff cannot recover without showing that he is entitled to the possession; and the defendant, without having any right to the possession himself, may generally prevent a recovery by the plaintiff, by showing an outstanding right of possession in another. The remedy fora forcible or unlawful entry was designed to protect the actual possession, whether rightful or wrongful, against unlawful invasion, and to afford summary redress and restitution. The entry of the owner is unlawful if forcible, and the entry of any other person is unlawful, whether forcible or not. If the defendant enters unlawfully, the plaintiff is entitled to recover, without any regard to the question of his right of possession. His actual possession, of itself, gives him a right of possession against any person not having a right of entry. That the land belongs to the commonwealth will make no difference. There can, it is true, be no adversary possession against the commonwealth. But a person may be in actual possession of the land of the commonwealth, and will be entitled to all the remedies which the law provides for the protection of the actual possession against tortfeasors. Any possession is a legal possession against a wrongdoer. Graham v. Peat, 1 East 244; Harker v. Berkbeck, 3 Bur. 1556. Proof of an .actual and exclusive possession by the plaintiff, even if it be by wrong, is sufficient to support the action of trespass against a mere stranger or wrongdoer, who has neither title to the possession himself nor authority from the legal owner. 2 Greenl. Ev. § 618. In a case reported in 4 Leon. 184, and Godb. 133, it appears that Anderson, C. J., said, “If one intrude upon the possession of the king, and another man entereth upon him, he shall not have an action of trespass for that entry; for that he who is to have and maintain trespass ought to have a possession. But in such case he hath not a ^possession, for every intruder shall answer to the king for his whole time, and every intrusion supposeth the possession to be in the king.” But it was decided in the subsequent case of Johnson v. Barret, Aleyn’s R. 10, that an intruder upon the king’s possession might have an action of trespass against a stranger. And the same principle is stated in 7 Com. Dig. Trespass, b. 2, p. 510, marg. 493, where the case reported by Aleyn is referred to, but not the previous case reported by Eeon. and Godb. The weight of authority seems therefore to be in favor of the principle as laid down in Com. See also Cutts v. Spring, 15 Mass. R. 135; and Inhab. Barnstable v. Thacker, 3 Metc. R. 239.

If a person in possession of public land may maintain trespass against a stranger, a fortiori he may maintain forcible or unlawful entry against him. Forcible entry may be maintained where trespass cannot; as for instance, against the owner of the land; who may defend himself against an action of trespass by the plea of liberum tenemen-tum. Hyatt v. Wood, 4 John. R. 950. The owner of the land, having a right of entry, will not commit a trespass by entering, though with force, unless he also commit a breach of the peace. The law will not give damages against him in an action of trespass quare clausum fregit, but will compel him to restore the possession in an action of forcible entry. That the defendant, in an action of forcible entry, cannot defend himself by showing that the land in controversy is a part of the public domain, has been decided in Alabama, Cunningham v. Green, 3 Alab. R. 127, and in Tennessee, Pettyjohn v. Akers, 6 Yerg. R. 448; and I am not aware that the contrary has been decided any where. I can see no reason for a different rule in regard to public and private lands. There is the same reason for the protection of the actual possession against unlawful invasion in both cases. The plaintiff in the action is not suing for ^damages, but to have the possession restored to him; and when he shows that he has been turned out of possession forcibly, or by one having no right to do so, he has made out his right to restitution, which cannot be defeated by any evidence in regard to the title or right of possession. The judgment has only the effect of placing the parties in statu quo. It settles nothing, even between them, in regard to the title or right of possession : it being declared by law that “Ho such judgment shall bar any action of trespass or ejectment between the same parties, nor shall any such verdict be conclusive, in any such future action, of the facts therein found.” Code, p. 557, ? 4.

But what is the nature of the possession to which this summary remedy applies? It is certainly not confined to a possession by actual occupancy or enclosure. I think it applies to any possession which is sufficient to sustain an action of trespass. Title draws after it possession of property not in the adverse possession of another. Actual possession of part of a tract of land under a bona fide claim and color of title to the whole, is possession of the whole, or so much thereof as is not in the adverse possession of others. This is the general principle, and it applies to the remedy in question. It has been decided in Kentucky that actual residence on one part of a tract, claiming the whole, is a possession of the unenclosed part, within the meaning of the act against forcible entries. Vanhorne v. Tilley, 1 Monr. R. 50. If this be a sound principle of law, as I doubt not it is, it applies to the land of the commonwealth as against persons not lawfully claiming under her. See Cunningham v. Green, 3 Alab. 127. Of course her rights cannot be affected by any kind of possession of her land.

Applying these principles to this case, there can be no doubt of the plaintiff’s right to recover, if the facts were according to the respective pretensions of the ^parties. The plaintiff being in the actual possession of a part of a large tract of land, claiming the whole under a deed conveying it to him by metes and bounds, and having continued in* such possession for more than fifteen years, paying taxes on the whole tract, and which during all that time was charged to him on the books of the commissioner, the defendant, within three years before the institution of the suit, entered and took possession of a part of the land not in the actual occupancy of the plaintiff, claiming it under an entry and survey made for the purpose of obtaining a patent, upon the ground not that it was waste and unappropriated land, but that it was part of a large tract of land which had become vested in the president and directors of the Literary fund, under the act of 1814, 2 Rev. Code, p. 550, f* 30. We have seen that possession of part of a tract of land, under claim and color of title to the whole, is possession of the whole, and that this principle applies to the land of the commonwealth as against persons not lawfully claiming under her. The defendant claims under her, but not lawfully; the land not being waste and unappropriated, and therefore not liable to entry, survey and patent, even though the title be vested in the president and directors of the Literary fund. It is unnecessary to enquire what would have been the relative rights of the parties if the defendant had obtained a patent for the land in controversy before the institution of this suit. The land not being patentable, he was a mere trespasser in making the entry and survey, and is bound to restore the possession to the plaintiff from whom it was unlawfully taken.

The case, then, on its merits, seems clearly to be with the plaintiff, who is entitled to have the judgment of the County court in his favor affirmed, unless there be some error in the rulings of that court, which requires its reversal. The case, as before observed, *was treated in that court, as well as the Circuit court, as an action of ejectment, and the questions raised and decided were appropriate to that rather than an action of unlawful entry. Still I think there are no errors in the judgment of the County court to the prejudice of the defendant.

Those questions arise on the two bills of exceptions taken in the case. That arising on the first is as to the admissibility of the deed. There can be no doubt about the admissibility of the deed as evidence, if the facts stated in the second bill of exceptions be referred to; as they clearly show that the deed was admissible as color of title, and for the purpose of showing the metes and bounds of the tract claimed by the plaintiff under the deed, and of part of which he took actual possession. The general rule certainly is, that facts stated in one bill of exceptions cannot be noticed by an appellate court in considering another. 1 Rob. Pr. 347. There may be exceptions to this rule where the reasons on which it rests do not apply. Perkins’ adm’r v. Hawkins’ adm’x, 9 Gratt. 649. The second bill of exceptions showing that the deed was clearly admissible, and that no additional evidence could have rendered it inadmissible, it would seem to be vain to reverse the judgment for the supposed error in admitting it before other evidence was offered which rendered it admissible. But without deciding whether this is an exception to the general rule before mentioned, and without looking to the facts stated in the second bill of exceptions, I think the deed was admissible evidence. It is a link, and it seems to me a necessary link, in the chain of the plaintiff’s evidence. One of the questions necessarily involved in the case is, whether the plaintiff was in possession of the land when the wrong complained of by him was committed? A man can rarely be in the actual occupancy of every foot of his land. His possession of part of *it is generally constructive, and results from his actual occupancy of another part, under claim and color of title to the whole. The deed under which he enters'and claims is then a necessary part of his evidence to show the metes and bounds of his possession. It cannot therefore be said, when he offers the deed in evidence, that it is irrelevant and inadmissible. If no evidence be offered to support the deed, and prove that possession was taken under it of the land thereby conveyed, or some part thereof, the plaintiff’s chain of evidence may be incomplete, and may be objected to on that ground, but not on the ground that the deed was not a proper link in the chain. The deed being a proper link in the chain of evidence, it will be presumed in favor of the judgment that the other necessary links were supplied before, at the time, or after the deed was offered. Flannagan v. Grimmet, 10 Gratt. 421. Specific objections were made to it, which, if well founded, affected its validity as a transfer of title; but whether well founded or not, left it still admissible evidence of the metes and bounds of the land in controversy, and of the extent of the plaintiff’s possession. The motion was not to exclude the deed only as evidence of a valid transfer of title, but to exclude it altogether; and was therefore properly overruled, if the deed was admissible for any purpose.

The questions arising on the second bill of exceptions are, as to the instructions refused and given by the court. I think the four instructions moved for by the defendant were properly refused by the court. The first was properly refused, because even if the deed conferred no title, it did not follow that the jury should find for the defendant. The plaintiff, even if he had no title, had a right to recover if he was unlawfully dispossessed by the defendant within three years before the institution of the suit. The second was properly ^'refused, because, notwithstanding the facts supposed in that instruction, the deed gave color of title to the plaintiff; and whether it did or not, he had a right to recover, if he was unlawfully dispossessed by the defendant as aforesaid. The third was properly refused, because the land in controversy not being waste and unappropriated, and therefore not liable to entry, survey and patent, the defendant’s entry was unlawful, and the plaintiff was entitled to recover possession in this suit, notwithstanding the defendant may have entered and surveyed the land in 1850, and returned a plat and certificate thereof into the land office more than six months before the trial of the suit. The fourth was properly refused, for the same reasons which made it proper to refuse the first and second. I do not admit, however, that it was necessary to state in the survey on which the plaintiff’s deed was founded, whether or not any improvements were included on the land, nor that in the absence of such a statement, evidence dehors the proceedings would be admissible to show the existence of such improvements. On that subject I express no opinion, it being unnecessary to do so.

I am also of opinion, that there is no error in the instruction which was given by the court; at least none to the prejudice of the defendant. This instruction, like the rest, regarded the case as an action of ejectment, and is wholly inappropriate to an action of unlawful entry. Whether the proposition therein asserted would be correct or not in an action of ejectment, it does not seem to be untrue, though irrelevant and unnecessary, in an action of unlawful entry. If, as we have seen, the plaintiff would be entitled to recover in this action on the facts supposed in the instruction, without regard to the length of his possession, a fortiori he would be so entitled if he continued to hold possession more than seven years before the defendant’s entry.

*In regard to all the questions arising upon the two bills of exceptions in this case, I refer to what is said by Judge Lee in Kincheloe v. Tracewells, 11 Gratt. 587, 608-9, which seems to be as applicable to this case as that. I also refer to the opinion of Judge Daniel in Tappscott v. Cobbs, 11 Gratt. 172, as having a material bearing upon some of the questions arising in this case, even in their application to an action of ejectment.

I am for reversing the judgment of the Circuit court and affirming that of the County court.

SAMUELS and LEE, Js., concurred in the opinion of Moncure, J.

ALLEN, P., and DANIEL, J., dissented.

Judgment of the Circuit court reversed; and that of the County court affirmed.  