
    Wood against Hyatt.
    NEW-YORK,
    May, 1809.
    Where A, having been in possession of land about 10 years, afterwards, on the 7th A'ovem* her, sold all his right, interest, and improvements to 3. and promised to deliver the possession to him on the first day of March following, and acknowledged that he held the possession under H. it was held, that A. was the tenant of B. and having continued in possession after the 1st March 9 he became a tenant at cufieranev, and that by the onto y of 3. an end va» pul to the tenancy, so that li. might rutintain tiv<pi.ss against one claiming to hold under A. Such a title in B. is sufficient against all but the rightful owner; and in an action of trespass against him, he may plead liberum ?enementnm. See ante9 p. 150»
    THIS was an action of trespass guare clausum fregit, for breaking the plaintiff’s close, called the south-east meadow, in lot No. 80. in the township of Junius, on the 20th day of July, 1805. The defendant pleaded the general issue, and liberum tenementuvu,
    
    The cause was tried before Mr. Justice Spencer, at the Seneca circuit, in June, 1808.
    The principal facts in this case were the same as in that of Hyatt v. Wood, (ante, 150.) The following are all the facts which it is thought necessary to state in addition : Hugh Jackson, as witness for the plaintiff, testified, that Jackson and Bunnel occupied that part of the Green farm which is south of the road, except the pasture and the south-east meadow; that the plaintiff occupied the pasture; that the plaintiff had mowed some grass himself in the south-east meadow, and that the witness mowed under the plaintiff, in the same meadow, for a day or more, when the defendant came to the meadow, and threatened to turn the witness out if he continued to mow, when the witness left the meadow, and the defendant mowed the grass. The plaintiff had other persons at work for him, in other parts of the farm, in June, 1805.
    
      Reuben S. Morris, a witness for the defendant, testified, that on the 27th February, 1805, he saw the defendant in possession of lot No. 80. in Junius ; that Green was present, and gave his consent to the defendant, that he should enter into possession; that Green was then in possession ; that the possession was given to the defendant in behalf of Murray and Mumford, and in consequence of an agreement between them, Green, and the defendant.
    The judge charged the jury, that in order to maintain the action, it, was not sufficient for the plaintiff to show a right to the possession merely, but he must prove that he had the actual possession at the time of the trespass complained of, and that, in his opinion, the weight of evidence was, that the defendant was in the actual possession of the south-east meadow, and that the defendant was not, therefore, liable to the action.
    A motion was now made to set aside the verdict and for a new trial.
    
      Riker, for the plaintiff,
    contended, that according to the decision of the court in Hyatt v Wood, (ante, 150.) Wood must be considered as having a title, and that Green being a mere tenant at sufferance under Wood, the possession was changed, by the entry of Wood on the 19th July, 1805, and he must, therefore, be considered as in the actual possession, so as to enable him to maintain trespass.
    
      Hopkins, contra,
    admitted, that the entry of the landlord would put an end to the tenancy at sufferance, and change the possession, but he denied that the plaintiff had shown any title sufficient to make him a landlord. He said that it was a mere struggle between the parties for the possession.
   Spencer, J.

According to the decision of the court, at the last term, Green is to be considered as a tenant at sufferance, and as the defendant came into possession under Green, he must stand in the place of Green.

Van Ness, J.

The court, in the case of Hyatt v. Wood, did consider, that Wood had a sufficient title to support the plea of liberum tenementum, and that Green was a tenant at sufferance. That decision, therefore, must be conclusive in the present case.

Per Curiam.

Green became a tenant at sufferance to the plaintiff, after the first day of March, and the defendant, who held under Green, must be considered as standing in his place, and as also a tenant at sufferance. The entry of the plaintiff on the locus in quo, before the trespass alleged, put an end to this tenancy, and made the defendant a trespasser. There must be a new trial, with costs to abide the event of the suit.

. New trial granted.  