¶1— Shipman sued Baxter in an action of trespass guare clausum fregit to recover damages for the cutting of some trees. The proof conduced to show that, at the time of the alleged trespass, the locus in quo was wild or uncleared land, “never in the actual possession of either party.”
¶2Shipman showed paper title in himself, by patent from the United States to one Jones, and by deed from Jones to himself in 1836.
¶3The defendant also produced paper title from one Lewis R McRae to D. McRae, in 1833, from D. McRae to John McRae., in 1844, and from John McRae to himself; in 1845. He also showed “a state of facts,”in the language of the bill of exceptions, “from which the jury might or might not have inferred that said Lewis D. McRae was authorized by Jones to make the deed he did to D. McRae,” through whom defendant claimed.
¶4In view of this state of the case, the court charged the jury, “ that if they believed the cutting of said trees was done by the defendant in the Iona fide assertion of a claim of title which he thought to be good,-that he was not liable in this action.”
¶5This charge of the court is assigned for error.
¶6The case, under one aspect of the evidence, was shown to be in that posture when the rights of the parties in this action would have to depend on the relative strength of their paper title exclusively. If no one had actual possession of the land, possessio pedis, and this was a controverted matter of fact in *458the case, tbe title draws to it constructive possession. Hence, in every ease of trespass for injury to the possession, when no actual possession is shown, the right of recovery depends upon tbe title, and the contest becomes a contest as to superior title. Blackburn v. Baker, 7 Por. 284.
¶7If it was intended to litigate the right of tbe plaintiff to purchase of Jones in 1836, on the ground that the land had been previous^ sold to those under whom the defendant claimed, and that he and those under whom he claimed were in adverse possession at the date of the sale from Jones to the plaintiff, the question should have been distinctly presented. To make such a point good, it would have been necessary to show that defendant and those under whom he claimed had been in actual possession of the locus in quo, or of some part of a legal sub-division of which it ¡ormed a portion; because such actual possession is essential to constitute adverse possession. 4 Kent 441; Dexter v. Nelson, 6 Ala. 69.
¶8As between Shipman and Baxter, then, if neither was in actual possession, the constructive possession, and the concomitant right of action for injury to the possession, would reside with the party having the superior title.
¶9It was consequently erroneous for the court to instruct the jury, that the defendant would not be liable for the act complained of, provided he did it “ in the bona fide assertion of a claim of title which he thought to be good.” The jury should have been instructed, that his liability depended, not upon his own convictions of the goodness of his title, but of its actual goodness according to the proof in the cause, as compared with that of the plaintiff; in other words, upon which of the two had the better title to the locus in quo.
¶10For this error the judgment is reversed, and the cause remanded.