March, 1836. It perhaps will not be disputed, but that a tenant has a NASHVILLE, lawful right to disclaim his tenancy, or to change the charac- Lane ter of his possession, upon giving his landlord notice. In this case, Lane had notice. The defendant did not become the purchaser in fee from a tenant in possession, under a lease, as is presupposed in the charge delivered in this case, but purchased of Green, claiming the fee, and he of Scott, claiming a like estate. Suppose the judge in the court below, to have misdirected the jury as to the notice to the defendant of the plaintiff's lease, in order to affect his title; yet enough is shown in the record to authorize a finding for the defendant, independant of that consideration. It is essential, that the misdirection of the judge should materially affect the verdict. 10 John. Rep. 447: 5 Do. 479: 5 Mass. Rep. 487. When it is apparent that the plaintiff has no title to the land, would the court deprive the defendant of his possession, and put him to the expense or inconvenience of ejecting the plaintiff on the ground of his better title, if his better title would enable the present defendant, when made plaintiff, to prevail; why not that title protect his possession? J. S. Yerger, in reply, Commented very fully upon the authorities cited by the opening counsel, and insisted upon their direct and immediate application to the case. REESE, J. delivered the opinion of the court. On the trial the circuit court charged the jury correctly, except that they were told that if the defendant had no notice of the lease, he would not be concluded by it from insisting upon his title, and might, though deriving his possession from a tenant of the plaintiff, retain it against him without surrendering it to him. This distinction, which we consider not well founded, probably arose in the mind of the court from a misapplication of the doctrine established with reference to the facts and circumstances, as between landlord and tenant, and those claiming the possession from the latter, V Osment. March, 1836. Lane Osment. NAVSIHLLE, which will protect them as against the landlord by operation of the statute of limitations. We do not mean to say that the notion of notice in such case would have any proper application, for the bar of the statute, as between landlord and those claiming in fee under the tenant, will arise, not from the want of notice, and of the tenancy, on the part of defendant, but from the notorious character of his adverse and exclusive holding. In the case of Wilbrow vs. Watkins, 3 Peters, alluded to and re-affirmed in Person vs. Smith, that court declared the law to be settled, that a purchase by a tenant of an adverse title, claiming under or attorning to it, or any other disclaimer of tenure, with the knowledge of the landlord, was a forfeiture of his term; that his possession became so far adverse, that the act of limitations would begin to run in his favor from the time of such forfeiture, and the landlord could sustain an ejectment against him, without notice to quit, at any time before the period prescribed by the statute had expired, by the mere force of the tenure; but that the tenant could, in no case, contest the right of his landlord to possession, or defend himself by any claim or title adverse to him, during the time which the statute has to run. If the landlord under such circumstances, suffers the time prescribed by the statute of limitations to run out, and without making an entry, or bringing a suit, each party may stand upon their right; but until then, the possession of the tenant is the possession of the landlord. The same doc trine is by many cases extended to those who claim under the tenant, as well in fee as by sub-lease. See 4 Hay. Rep. 158, 257: 5 Hay. 101: 2 Hay. 177: Adams on Ejectment, 30, 31, 54, 57, 247: 3 John. Rep. 223, 491: 4 Do. 163, 202: 4 Serg. and Rawle, 467, 470: 1 Cow. Rep. 575: 5 Cow. 123: 7 Cowen, 323: 5 Yerg. 217, 397, 398, &c. Duke vs. Harper, 6 Yerg. 280. Since this cause was first before the court, it has again been brought under our consideration, and pressed with much zeal and erresiness by the counsel for the defendant; but we think the principles applicable to the case, well settled. Let the judgment be reversed, and the case be tried again in the circuit court, where the law will be charged as in this opinion. Judgment reversed. GOODWIN, et al. vs. SANDERS & READ. NASHVILLE, March, 1836. Goodwin V Where errors of fact are assigned. and in nullo est erratum is replied, it op- Sanders & Read. erates as a emurrer, and the error in fact so assignedis admitted. It is a general rule, that if a statutary bond is not taken in conformity with the directions of the statute, the summary remedy by motion, cannot be sustained. No motion will lie upon a sheriff's bond not delivered and acknowledged in court and recorded, as required by law to be done. At the February term, 1835, of the circuit court of Giles county, Chloe Sanders and Samuel D. Read, executors, &c. recovered a judgment against Thomas C. Porter, then sheriff of Giles county and the plaintiffs in error as his sureties, for the sum of seven hundred and twenty-six dollars. This judgment was obtained upon motion, without notice to the sureties, for moneys collected by Porter as sheriff. A writ of fiera facias issued upon the judgment, tested of the same term in which the judgment was rendered. The plaintiffs in error applied for and obtained a supersedeas to the execution, and at the following term of the court, moved for a writ of error coram nobis, and assigned and pleaded the following errors of fact. 1. The judgment was rendered on a supposed bond, by motion, without notice to any of the defendants below, and that the bond never was delivered to, in or before the court, where the same is by law directed to be delivered. 2. The judgment was founded on the bond, which was not taken conformably to the statute, in this, that the penalty of the bond is ten thousand dollars, when the statute requires it to be twelve thousand dollars. 3. That the said bond was not acknowledged in the county court of Giles county, and recorded as required by law, and that therefore no judgment by motion could be rendered upon it. To the assignment of errors, the plaintiff replied in nullo est erratum, upon which the circuit court gave judgment against the plaintiffs in error, from which judgment they prosecuted an appeal in error to this court. J. Campbell and Geo. S. Yerger, for plaintiffs in error. NASHVILLE, Goodwin V REESE, J. delivered the opinion of the court. In the assignment of errors coram nobis, in this case, it is Sanders & Read alleged, that the judgment was rendered on a supposed bond, by motion; that the bond was never delivered to, in or before the court, where the same is by law directed to be delivered and executed; that the bond was never acknowledged in or before the county court of Giles county, nor was the same ever recorded. To these allegations, among others assigned as error, the plaintiffs below joined in error in nullo est erratum, and the question is, can a motion be made against the sheriff and his securities, and be sustained upon a bond, not taken by and before the justices; not acknowledged before them; not recorded in court. These facts are alleged in the assignment of errors: in nullo est erratum admits them, as would a demurrer. 2 Sanders' Rep. 101. And if it had been proper to look into the proof under this issue, the testimony of Wilcox, the clerk of the county court of Giles, proves the truth of these allegations. The cases of Porter vs. Webb, 4 Yer. Rep. 161; Cheatham vs. Howell, 6 Yer. Rep.; Sumer & Foster vs. Henry 4 Yer. Rep. 157; and Mallery vs. Powel 2 Yer. Rep., prove in general, the principle, that if a statutary bond do not pursue the directions of the statute, the summary remedies given upon it by the statute cannot have effect. It is true, the variances from the statute, in the cases referred to, were in the terms and stipulations of the bond; in the persons to whom made payable, &c.; but the principle is the same. In this cause, the parties not denying their seal and signature to the bond, say it was not acknowledged before, or sanctioned by the court, and it was not recorded; and they contend, that a bond taken in open court, and there acknowledged and recorded, stands verified and authenticated as a record, and may well constitute the basis or foundation of a summary proceeding by motion, against the sheriff and his securities; but that a bond taken in the mode adopted in this case, if good at all, is good only in a suit upon it at common law, How could the clerk of the county court of Giles, of a bond unacknowledged in open court, and unrecorded, give an authentic or official copy, constituting the basis of this pro NASHVILLE, V ceeding? We think the principle of the cases referred to, March, 1836. embrace this case. Let the judgment of the circuit court of Goodwin Giles county, in the writ of error coram nobis be reversed, and the court proceeding to give such judgment as the circuit court ought to have given, let the judgment first rendered in said court be reversed, also with costs, &c. &c. Judgment reversed. Sandecs & Read DAVIDSON vs. PHILLIPS. Locking the doors of a house, and keeping the keys; closing the windows. and driving a portion of stock upon the premises, constitute evidence of an actual possession of land, which will authorize a recovery in an action for forcible entry and detainer. Where a party is in possession of land, whether he has been ousted of that possession, is a question of fact for the jury. Where A takes possession of a house and premises, by locking the door and closing the windows, and B applies to his agent and demands possession, which is refused, and B is afterwards found in possession of the house, claiming under an adverse itle to A: Held, that it was to be inferred. he got possession by breaking the doors or windows open, and that this constituted a forcibly entry, within the meaning of the act of 1821, c. 14, § 2. In the year 1829, Wm. Phillips, one of the defendants in error, sold to William Wickham a tract of land in Montgomery county, and executed his bond for title thereto. Wickham entered into possession, which he retained for two years; at the expiration of which time, he leased to Rye for one year. Difficulties and disputes, in the meantime, having arisen between Phillips and Wickham relative to the title to the land, Phillips sued Wickham for a part of the purchase money, and Wickham filed a bill against Phillips to rescind the contract. Phillips having obtained a judgment against Wickham, caused an execution thereon to be levied on the land, exposed the same to sale, and became, jointly with R. L. Phillips, the purchaser. When Rye's lease was about to expire, he requested Wickham to come and take possession, which he neglected to do. A short time before Rye left the premises, R. L. Phillips, with his consent, caused locks to be put upon the doors, and brought to the premises a stock of |