majority">By Mr. Justice Saffold :

/ Singleton complained before a justice of the peace that Finley unlawfully detained from him a tract of land therein described, of which, he, Singleton, was the lawful owner in fee simple. Singleton obtained a verdiet and judgment before the justice, which, on certiorari, were reversed in the Circuit Court. One of the assignments of error, in the Circuit ' *146Court, and the only one necessary to be noticed, is, that the complaint does not show that the plaintiff ever had possession, or was entitled to possession of the land in question. The alleged ground of error in this Court is, that the Circuit Court wrongfully sustained the assignmsnt of errors. The question is now presented for the consideration of this court, on the ground on which the reversal is presumed to have been had in the Court below. It is, whether the record exhibits a cause of action, for which a remedy has been provided by the statute, concerning forcible entry and detainer. That the statute, by this summary mode of procedure before a justice of the peace, did not contemplate a tviü. of the right of property, or of the right to possession derived merely from the strength of title, sufficiently appears from the grade of the tribunal, and from various expressions contained in the statute. Such has been established as the rule of construction by this coul.(;5 [n t!ie cases of Childress and McGehee,aand Lecalt and Stewart.bIn both these cases it was held, that the record must show that the plaintiff has had actual possession of the premises, so that these cases are decisive of the present one, if the same objection applies. The plaint which is the leading process, alleges title only in the plaintiff, and unlawful detainer by the defendant. The notice to the defendant^ claims the right and title of possession, and charges, that the defendant holds without authority. The summons alleges a forcible and unlawful detainer by the defendant on the land of the plaintiff, without any showing as to the mode or man- • ner by which the defendant entered. There is nothing in the nature of this claim, or in any of the averments, to exclude the presumption, that the plaintiff may have purchased . the land of the government, while, occupiod by the defendant ; , or that he may have.purchased of some individual, between whom and the defendant, there was no privity of contract— they may even have held adversely, under conflicting titles.

The mere constructive right of possession, arising from-the right of property, is not sufficient to authorise a recovery *147in this summary mode. The statute forbids any inquiry into the estate, or merits of the title, on any complaint of this nature ;a and applies the remedy exclusively to such lands, tenements, or other possessions, as shall be forcibly entered and detained, or forcibly or unlawfully detained.b Here a forcible entry is not charged, but only an unlawful detainer, by the plaint to the magistrate — and by the summons, a forcible and unlawful detainer. Waiving this discrepancy, and giving the plaintiff the benefit of either, yet his ground is insufficient to justify this remedy. He should have sho>vn by the record of his claim, that he had enjoyed the actual possession in person or by tenant. If it were admitted, that in this case the evidence was sufficient to establish the necessary possession by the plaintiff, yet the proceedings do not describe a legal 'cause of action. This defect is the more fatal, in as much as the defendant, besides the general issue, pleaded peaceable possession for three years. A cause for this action may once have existed — and it may have been barred by the lapse of time, or change of the right of possession; therefore the evidence in this case cannot cure the defect in the proceedings.

The judgment of the Circuit Court must be affirmed.

1 Al. R. 134

2 Stew. 474.

Aik. D. 205, s. 20.

Ib. s. 7.

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