charge of the circuit judge, which the court deemed erroneous, and calculated to mislead the jury. That part of the charge deemed erroneous, is stated in the opinion. The jury under the influence of the charge, found a verdict for the plaintiff, and the circuit court having refused to grant a new trial, the defendant prosecuted this writ of error. Geo. S. Yerger, for the plaintiff in error. J. Crosier and S. Rodgers, for defendants in error. TURLEY J. delivered the opinion of the court. This writ of error is prosecuted to reverse a judgment rendered in the court below, in an action of trespass quare clausum fregit. The causes of error assigned are, that the proof does not show a right to recover, and that the judge mistated the law to the jury. The action of trespass, quare clausum fregit, is the proper remedy to recover damages for an illegal entry upon, or an immediate injury to real property corporeal in the possession of the plaintiff. Chitty on Pleading, vol. 1, 175. It is well settled in England, that the gist of this action is the injury to the possession, and that unless at the time the injury was committed the plaintiff be in actual possession, trespass cannot be supported. 1 Chitty on Pleading, 177. 5 East. 485-7. But in the the case of Brun and another vs. Schenk, 11 John. R. 385, Spencer J. says, "we have carried the principle as to real property further than has been done in England, and we allow the owner to maintain trespass without actual entry, on the principle that the possession follows the ownership, unless there be an adverse possession. This is extending the principle of constructive possession, which in England, has always been confined to personal property, to land, and perhaps the situation of our country requires that this should be done. In England there is but little if any real estate which is not in the actual possession of some one; but in the United States, large bodies of land are lying uncultivated and unoccupied, and unless the owners can be allowed to have the constructive possession thereof, and upon that possession to KNOXVILLE. Polk V Henderson. KNOXVILE. June, 1835. Polk V Henderson. maintain trespass against wrongdoers who have not taken possession adversely, all unoccupied lands are exposed to the ravages of every person who thinks more of his own welfare than of his neighbors rights, as there is no other remedy for casual trespasses. But this constructive possession can never be determined to be in any other person than the legal owner of the premises, and has never been held to be sufficient to justify the bringing an action of trespass against a person actually in adverse possession. In this case the court below charged the jury, that either the possession, or the right to the possession would authorise the maintenance of the action. This is clearly erroneous; the right to the possession and the right of entry are synonimous terms, and authorise the bringing of an action of ejectment, but not an action of trespass. It is possible that by the right of possession the court meant constructive possession, but they are very different in their signification, and this court cannot but think that by this charge the jury were misled, [as there is no proof of an actual or constructive possession on the part of the plaintiff, and the court cannot see upon what principle this verdict was founded, unless it were that the plaintiff had the abstract right to the possession, because he had rented the premises at auction. The court should have charged the jury, that a constructive possession would authorise the maintenance of this action against a casual trespasser, where there was no person in the adverse possession of the disputed premises. But that the action could not be supported under any other circumstances, unless the plaintiff were in the actual possession at the time when the injury was committed. The judgment will be reversed, and the cause remanded for a new trial. Judgment reversed. SMITH'S Executors vs. MABRY. Where one of several executors contracted to sell slaves, the property of their testater, the purchaser has only an equitable right. And where another of the executors sold and delivered the same slaves to another person, who had full knowledge of the previous sale, the latter sale vested the legal title; which in a court of law must prevail. The general rule, that in the assignment of choses in action, &c. a court of law will protect the equitable interest of the assignee, and not permit him, in whom the legal right is, to injure by his act the equitable owner, has no application to such a case. This is an action of detinue to recover from the defendant several negro slaves, brought by William Smith and Miller Smith, executors of the will and testament of John Smith deceased, for the use of Absalom K. Simington, W. D. Alexander and James Campbell. It appears from the proof in the cause, that after these negroes were in the possession of Mabry under a purchase from one Stewart, William Smith, one of the executors, sold the negroes to Simington, Campbell and Alexander, that is, as explained by him, a moiety of the entire interest in them, to Wilson, the intestate of Alexander, at one time, and at another time the remaining moiety to Simington and Campbell. This executor lived in North Carolina. The legal title, however, in the slaves did not pass from the executors to the persons named. Before the institution of this suit, Miller Smith, the other plaintiff and executor, and who resides in this state, conveyed to the defendant the negroes in question, by a bill of sale duly executed, and which was duly registered, so as to pass the legal title to the defendant. The consideration paid by Mabry for the negroes to Miller Smith, was very inconsiderable, and Smith and Mabry at the time of their contract, knew of the contracts between William Smith and the other persons named, and for these reasons and others assigned before the circuit court upon the trial of the cause, it was insisted by the counsel for the plaintiff, that the bill of sale from Miller Smith to the defendant could not be set up to defeat the plaintiff's right to recover. But the court charged the jury, that inasmuch as no legal title passed by the sale of William Smith, of the negroes to the persons for whose use KNOXVILLE. V Mabry. June 1836. Smith V Mabry. this action is brought, their equitable interest could not be inquired into in this action, and as the legal title remained in the executors, the bill of sale from William Smith, one of the executors to Mabry, passed the legal title to him, and therefore the plaintiffs were not entitled to recover in this action. The jury returned a verdict for the defendant. A new trial was moved for and refused by the circuit court, and an appeal in the nature of a writ of error prosecuted to this court. John Williams, for plaintiff in error. No person appeared for defendant. REESE, J. delivered the opinion of the court. Whether the charge of the circuit court be correct, is the only question before us. And we think it is. In a court of law it would never occur to counsel to inquire into the equitable interest in land of any one. The equitable right constitutes no proper subject for investigation in the legal forum. And if there be any action touching a personal chattel, which more than all others, requires the inquiry to be confined to the legal title, it is the action of detinue for slaves, in which the right of a plaintiff to recover depends upon legal title. Courts indeed, in some cases of choses in action where the evidences of claim have been sold and delivered to another, will protect the equitable interest of such assignee by delivery when the suit has been brought for his use. But to extend this to all forms of action, and particularly to specific property sought to be specifically recovered, would obscure or obliterate the well defined distinctions between the jurisdiction of a court of law and a court of chancery. What was the court in effect called on to do? 1. To set aside the bill of sale from Miller Smith to Mabry, on the ground of fraudulent collusion and inadequacy of price. 2. To execute the contract between the plaintiff, William Smith, and the equitable claimants, by delivering to them the negroes to be recovered. June 1836. Lea V Netherton. This course of action falls within the sphere of our chan- KNOXVILLE, cery courts. That the circuit judge was correct in his charge, we think clear of all doubt. The act of Assembly referred to, in cases where a suit may be properly brought in the name of one person for the use of another, subjects the latter to costs, but it does not multiply the cases in which this may be done, nor in any manner except as to costs, extend the powers of the court. We affirm the judgment. Judgment affirmed. LEA's lessee vs. NETHERTON. A tenant cannot during the term, by disclaimer or by adversely holding for another, resist a recovery by his landlord: but when a disclaimer by the tenant is known to the landlord, the possession of the tenant becomes adverse, and if the landlord permit him to hold possession for seven years thereafter, he will be barred by the act of limitations A demand of possession by the landlord, and a refusal to surrender it by the tenant, on the ground that he claims title himself, is evidence of actual ouster. Where a defendant claims title only by seven years possession, without any color of title, he must show under the provisions of the act of 1819, c. 28, § 2, that possession was taken in hostility to the true owner, and was so continued; in such a case he is only protected to the extent of his actual enclosure. This is an action of ejectment, in which the defence main. is the act of limitations. ly relied upon, own. The proof shows that the defendant was in possession of the premises in dispute in the spring of 1823, and from that time until the commencement of this action in 1833, he continued to hold uninterrupted possession, claiming them as his The land originally belonged to John Lea, the fatherin-law of the defendant, who in the spring of the year, 1823, put the defendant into possession, informing him at the time, that he intended to give him the land to raise his children on, and that he never would take it away from him. In 1825, John Lea went to the defendant, Netherton, and informed him he must quit destroying the timber on the land, to which defendant replied he would not. Lea, then requested him to leave the place, which he refused to do. John Lea died in |