chance of impunity held out, if some other flaw in the occupant's title might be shown on the trial of an action for the trespass. Possession is prima facie evidence of title: a plaintiff in possession, without any title, may maintain trespass against a wrongdoer: evidence by the defendant, that plaintiff is holding without right or against right, can not avail the defendant, unless he can show that the right is in himself, or in somebody under whom he acted. If title be shown in a third person, the right under it must, until the owner or some person under him, claim advantage of it, be presumed to be in the occupant, whether the occupant be defendant in trespass to try titles, or plaintiff in trespass quare clausum fregit: Graham v. Peat, 1 East, 246; Catteris v. Cowper, 4 Taunt. 547; Skinner v. McDowell, 2 Nott & M. 68. Accordingly we find, that in Brandon ads. Grimke, 1 Nott & M. 356, a plaintiff in trespass quare clausum fregit was held (even admitting that his title was defective) to have, by actual occupancy, on the south side of a river, such possession of another part, on the north side, within his claim, as would maintain the action for entry and all subsequent trespasses, against a defendant who had not shown title.

In Williams v. McAliley, Cheves, 200, there were an old grant and two junior grants, all of the same land-possession by each of the junior grantees, of different parts, claiming the whole, for the statutory period: it was held that the junior grantee who first entered had such actual possession, as at the expiration of ten years, gave him a title to all the land within his claim, except the part in the actual occupancy of the other junior grantee. On the circuit it had been held that the minority of the first occupant, under a junior grant, would prevent the second occupant from acquiring title; or that the first might recover from the second, even the part of which the second had ten years pedis possessio; but this was overruled.

In Owens and Brown v. Goode, 3 Strobh. L. 474, there were an old grant with which another party was connected; a plat which covered part of the old grant and other land; occupancy by the defendant, under that plat, of the part outside of the old grant; a junior grant to the plaintiff, of all the land within the old grant; occupancy by him, for the statutory period, on a part of it outside of the defendant's plat after abandonment by an agent of plaintiff's, of a possession which had been, for a few years, held on the part within defendant's plat; entry by defendant, upon the part within his plat, covered by the old grant; action of trespass to try titles brought against him. It was held that

as there was no pedis possessio of the part which was covered by both claims, and by the old grant, but there was pedis possessio on either side outside of that parcel, the defendant's possession, being first extended to his whole claim, where it was not interrupted by an actual occupancy; attached again, soon as the actual occupancy, within his claim, was abandoned, and prevented the extension of plaintiff's subsequent possession to the same part, which was thus already occupied by the prior virtual possession of defendant; and that, upon this virtual possession the defendant might have maintained trespass quare clausum fregit against the person who had entered upon his claim and abandoned possession at any time before that person had held ten years.

It seems to me, then, to be plain that in a case like this it does not affect the extent of the plaintiff's possession for the defendant to show the existence of an older grant, with which neither party is connected.

It is thought to be impolitic that a squatter who has a junior grant, which covers an old grant and some other parcel, should, by settling on the other parcel, prevent an honest owner, who can not prove a perfect title, from entering upon the old grant. But it may be answered that no one who can not prove a title can be known to be owner, and nobody in possession must be presumed to be a squatter. No length of possession, outside of a tract, will give title against the owner of the tract-but accompanied by evidence of claim to the tract, possession outside may be sufficient to maintain trespass against every one who has not the right which title gives. The condition of the supposed owner would be just the same if the squatter had settled upon his unoccupied land and driven him to an action to try titles. Owners under doubtful titles will take care to preserve possession. On the other hand, an honest owner may be living on his land, held under various titles but occupied as an entirety, and if his possession of part is, by reason of an old grant which seems to show title in a third person to some woodland parcel of his tract, to be prevented from extending to the whole, some squatter might settle upon the parcel covered by the old grant and defy the owner, who has title but can not prove it, to eject him in an action to try titles.

The defendant further objects that, although the plaintiff may have been in possession when Turnage entered, Turnage disBeised him of the locus in quo, departed after several years, and was succeeded by the defendant before any re-entry of the plaint

iff, who has not since re-entered: so that, although the plaintiff might have have maintained this action against Turnage, he can not maintain it against the defendant.

A constructive possession, as I have said, is displaced by any actual adverse possession, substantial or virtual: because the implication of law, that he who has shown title is in under that title, yields to proof that another person is holding adversely. Against an adverse occupant who was in possession when the plaintiff acquired title, the plaintiff can not, then, maintain trespass quare clausum fregit, even although the plaintiff, when he brought his action, may have had possession of the other part of the land covered by his title: Pearson v. Dansby and Nelson, 2 Hill (S. C.), 466; Wilson v. Douglas, 2 Strobh. 97; Amick v. Frazier, Dudley (S. C.), 340; and, as it seems to me, against such adverse occupant, not a casual trespasser who entered after the plaintiff acquired title, but when the plaintiff had no actual possession of any part within his title, although he may have entered and departed before or afterwards, the plaintiff can not maintain trespass quare clausum fregit, even for such occupant's original entry.

But all this falls short of the case we are considering. The plaintiff here had actual possession when Turnage entered. If he had been entirely dispossessed by Turnage, he might have maintained this form of action against Turnage for the act of dispossession, if not for subsequent trespasses: but he could not have maintained the action against the defendant. But he was not dispossessed by Turnage; by his continued possession of other part of the tract, he still had a virtual possession even of the locus in quo. I say nothing of the re-entry upon the locus in quo, said to have been made by the plaintiff after the defendant took possession; for I can not perceive any effect that the law, as administered here, gives to either an entry or re-entry, which is not accompanied by occupancy. Virtual possession, however, is equivalent to the re-entry of a disseisee: if it does not co-exist with an adverse pedis possessio (as the recovery of damages for trespasses subsequent to the trespasser's acquisition of possession seems to show that it does), it is ever ready to supplant it: it is a sort of continual claim, or constant re-entry, and soon as the adverse occupant departs takes his place. All of Turnage's acts were continued invasions of an existing possession, and so were successive trespasses: the defendant, by following him, succeeded to no right, but became a trespasser upon a possession which, if it had not previously been concurrent with Turnage's,

extended to the locus in quo the instant that Turnage's foot was raised.

The motion is dismissed.

RICHARDSON, O'NEALL, EVANS, and FROST, JJ., concurred.
Motion refused.

POSSESSION OF PART IS POSSESSION OF THE WHOLE, where there are conflicting grants, and the adverse claimant is not in possession of any portion: Overton's Heirs v. Davisson, 42 Am. Dec. 544, and note, where prior cases in this series are collected or referred to: Altemus v. Lang, 45 Id. 688.

POSSESSION IS INDISPENSABLE TO MAINTAIN TRESPASS QUARE CLAUSUM FREGIT: Foster v. Fletcher, 18 Am. Dec. 208; Truss v. Old, Id. 748; Wilsons v. Bibb, 25 Id. 118; Putnam v. Wyley, 5 Id. 346; Orser v. Storms, 18 Id. 543. POSSESSION ALONE IS SUFFICIENT TO ENABLE ONE TO MAINTAIN TRESPASS QUARE CLAUSUM FREGIT against a wrong-doer: Bakersfield Congregational Society v. Baker, 40 Am. Dec. 668; Heath v. Williams, 43 Id. 265; Hayward v. Sedgley, 31 Id. 64, and cases cited in the note thereto. So, too, possession alone is sufficient evidence to maintain trespass against a mere wrong-doer taking chattel: See note to Orser v. Storms, 18 Id. 546, where the subject is discussed at length; and generally, see, on the subject of sufficiency of possession to maintain trespass, Barron v. Cobleigh, 35 Id. 505; Everston v. Sutton, 21 Id. 217; Burdict v. Murray, Id. 588; Duncan v. Potts, 24 Id. 766; Wilsons v. Bibb, 25 Id. 118, note 121; Sewell v. Harrington, 34 Id. 675; Potter v. Washburn, 37 Id. 615. Constructive possession is equally as available as actual possession, if the plaintiff has the right to possession and no one is in actual possession: Gillespie v. Dew, 18 Id. 42; Adams v. Cuddy, 25 Id. 330; McClain v. Todd's Heirs, 22 Id. 37; Goodrich v. Hathaway, 18 Id. 701; Orser v. Storms, Id. 543, and note; Buck v. Aiken, 19 Id. 535; Burdict v. Murray, 21 Id. 588.

TITLE IN STRAnger No DEFENSE IN TRESPASS QUARE CLAUSUM FREGIT.It is no defense to trespass quare clausum fregit that the title to the premises on which the trespass is charged is in one other than the plaintiff, unless the defendant justify under authority from such other person: Finch v. Alston, 23 Am. Dec. 299; Tourne v. Lee, 20 Id. 260.

BACON & RAVEN v. SONDLEY.

[3 STROBHART'S LAW, 542.]

RIGHT OF PARTY DEALING WITH AGENT WHOM HE SUPPOSES IS PRINCIPAL. If a person sells goods, believing he is dealing with a principal, but finds the person is but an agent for a third party, he may recover the purchase money from either principal or agent.

VENDOR SUING AGENT IS ASSENT TO PRINCIPAL'S RESCISSION OF AGENT'S PURCHASE.-If a principal rescind his agent's purchase, and the seller sue the agent in trover, that act is an assent to the rescission.

UPON AGENT'S DISCLAIMER OF PURCHASE ON HIS OWN ACCOUNT, made with the consent of the seller, the principal having also disclaimed, the goods

sold will be in the possession of the agent on deposit for the seller, and trover may be maintained for them.

EXECUTOR CAN NOT ALTER ELECTION OF DECEASED.-Where a person has a right to hold goods as consignee or to purchase them, and elects the former, and dies, his executor can not elect to take them as a purchase; and if he attempt to do so, and sell them, he is guilty of conversion.

TROVER to recover a piano-forte. Plaintiffs were manufacturers of pianos. Weir, acting as agent for James, but not disclosing his agency, ordered a piano of plaintiffs. It not arriving in time, the principal rescinded the order, and the agent wrote to plaintiffs not to forward it, but it had already been shipped. Weir died. The piano came after his death. The executor, who is defendant, inventoried and sold it. Plaintiffs had demanded it, but defendant refused to give it up. The jury found for the plaintiffs. Defendant appealed.

Desaussure, for the appellant.

Goodwyn, contra.

By Court, FROST, J. If a person sells goods, supposing, at the time of the contract, he is dealing with a principal, but afterwards discovers that the person with whom he is dealing is not the principal in the transaction, but agent for a third person, ⚫though he may, in the mean time, have debited the agent with them, he may afterwards recover the amount from the real principal: Patterson v. Gaudsequie, 15 East, 67. It is manifest that Weir ordered the piano not on his own account, but as agent for James. But he did not disclose to the plaintiffs the name of his principal. The plaintiffs, then, had an election to sue either Weir or his principal for the purchase money. As Weir, by the sale and credit given to him by the plaintiffs, became liable to them for the price, so, if he chose to affirm that contract, the property in the piano vested in him. The custom, which it was proposed to prove, that a person orderng goods for another (and not disclosing his principal, which is a necessary qualification) is regarded as the vendee, is in conformity with the law; and the evidence offered, being thus immaterial, was properly rejected. It may be admitted that the shipment of the piano, pursuant to Weir's order, was a sufficient delivery to the vendee (Weir or James) to complete the contract of sale, and change the property. But the concurrence of both parties is necessary to a contract; and a contract of sale, like any other contract, may be rescinded with the assent of both parties. The plaintiffs, after they discovered