SEGAR vs. KIRKLEY, 23 Ala. 680

CHILTON, C. J. -For the trespass in making the entry and depriving the plaintiff in the court below of his possession, the defendant made satisfaction in the former suit brought against him to recover for these wrongs, and as he is not entitled to double satisfaction, it follows that he can have no recovery for any injury which was proved and properly cognizable in the first suit. In Coleman v. Parish, 1 McCord’s Rep. 264, it was held, that a recovery of damages in trespass on lands was a bar to a subsequent action for mesne profits ; see also 3 Phil. Ev. C. & H.’s Notes, p. 960.

This action must consequently he maintained, if at all, upon the ground that the defendant below has retained the possession of the land, and has cultivated it since the trial of the former suit, and not for breaking the close or damage done anterior to the trial in that suit.—Cummings et al. v. McGhee, 9 Port. 349. But can it, under the facts as detailed in the bill of exceptions, be maintained at allí We are of the opinion that it cannot.

According to all the English authorities, the plaintiff must have the actual possession, in order to' be entitled to this remedy. — Chitty’s Pleadings pp. 175-7-8 -9, and cases cited by this author. In this State, however, so early as 1827, it was held, in Gillespie v. Dew, 1 Stew. Rep. 230, that the situation of this country required that the rule should be so modified as to give the remedy to one who has the title, though he has never been in actual possession, in cases where the land is vacant, or there is no one in the adverse possession ; in other wTords, where the plaintiff has a constructive possession.

The same doctrine has since been' several times affirmed by our predecessors.—See Blackburn v. Baker et al., 7 Porter 288; Blevins v. Cole, 1 Ala. 210; Cummings et al. v. McGhee, 6 Por. 349. In the subsequent case of Fry v. The Branch Bank of Mobile, 16 Ala. 282, it was held, that an action of trespass quare clausum fregit would not lie in this State, in favor of a disseizor, to recover mesne profits, unless he has regained the possession by entry. In Shipman v.

Baxter, 21 Ala. 456, this court held, that in this action (tres, quare clausum fregit) for an injury to the possession, if no actual possession is shown, the right of recovery depends upon the title, which draws to it constructive possession ; and that where neither party was shown to have had actual possession, it was erroneous for the court to instruct the jury that the defendant would not be liable for cutting trees upon the land, (the injury complained of,) if he did so under the bona fide claim and assertion of title to the land, which at the time he thought to be good.

Upon a slight examination, it might be supposed that the two cases last cited were not altogether reconcilable with each other, hut limiting them respectively to the facts of each case, there is really no discrepancy.

The first charge asked, when taken in connection with the evidence, assumes that if Segar, holding a tax collector’s deed, entered on the land, and by his entry and removal of complainant’s improvements, &c., committed a trespass, for which, in a previous action, he had made satisfaction, he was not liable in this suit 5 and if She poscecsiou by tho parties of the land had remained unchanged since the forme? suit, and the defendant had merely continued to hold and cultivate the land, the plaintiff, never having re-taken the possession since he lost it by the defendant’n original entry, could hot recover.

It docs not appear that either party showed a valid title to tho land, so that there could have been no constructive possession; hut if the plaintiff below had si.own a good title, he could not have been constructively in possession, when it is shown that, during the whole time which has elapsed since the former trial, the defendant has held adverse possession, by which we mean an actual possession, notoriously hostile, under claim of title.—See Finche’s Ex’rs v.

Alston, 2 Stew & Por. 85, where it is said, “To consider the defendant 'constructively in possession, when the plaintiff was actually so, would be drawing an inference which no state of the case would warrant,” — per Taylor J. But the case before us cannot be made plainer than by the bare statement of the propositions it involves. It is conceded by all that to maintain this action (trespass quare clausun fregit) the plaintiff, at the time of the injury complained of, must have either the actual or constructive possession.—Shipman v. Baxter, 21 Ala. 456.

He had not the actual possession, for the record says the defendant had that; he had not the constructive, for that arises out of a title, and he showed none. Therefore, having shown neither actual nor constructive possession, he has no right to avail himself of this remedy, and the charge refused was correct and should have been given. Let the judgment be reversed, and the cause remanded.