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The opinion of the court was delivered by

Peck, J.

To the count for trespass in breaking and entering the plaintiff’s dwelling house, occupied as such by the plaintiff and his family,, the defendants plead title in the defendant Perry, and that Moore and Allen acted as his servants and by his command. The replication alleges that the defendants entered with strong hand and with multitude of people and not in a peaceable manner; upon which issue of fact was joined. By the pleadings the title is admitted to *111have been in the defendant Perry. The jury under the charge of the court must have found that the plaintiff was in the occupancy of the dwelling house in question by himself and family as his residence and home on the 7th day of May, as he had theretofore been, and that the defendants on that day upon being refused entrance by the plaintiff, proceeded to force open the doors that were shut and fastened, and to make entry and to put in goods and to remove out the plaintiff’s goods, and disturb and break up the family home. It is conceded by the defendants’ counsel that this justifies the verdict for the plaintiff unless what transpired on 'the 6th of May changes the legal result. Both parties introduced evidence as to what transpired on the 6th of May, but before the case was submitted to the jury the plaintiff abandoned the transactions on that day as a ground of action, but the defendants rely on that as legalizing the making of the forcible entry with strong hand on the next day, the 7th of May. With a view to this question the defendants’ counsel made two requests to the court to charge the jury. The first being based on the supposition that the jury might find that the entry on the 6th was with the assent of the plaintiff, the counsel has abandoned, as ii> appears by the special verdict that the jury negatived such assent on the part of the plaintiff. The second request was to charge, that by the pleadings the title is admitted to be in the defendants, for the purposes of this suit, that if the defendants made peaceable entry on the 6th day of May, Perry thereby became seized and thereafter possessed according to his title, and had a right to enter as he did forcibly on the 7th. This request the court refused. Such an entry, if made openly for the purpose of taking possession, would invest the defendant with possession in construction of law for certain purposes, that is, for the purpose of enabling him, if he owned the premises and had the right of entry, to maintain trespass against the plaintiff for his subsequent occupancy, when without such entry he could not sustain an action of trespass for want of possession. This is a fiction of law introduced to obviate the technical objection to the action of trespass by the party having title, while another is in possession. But the question in this case is not whether the entry on the 6th .of May was such an entry as would have enabled Perry *112to maintain trespass against the plaintiff, nor whether the defendants had a right of entry on the 7th of May. The question is whether the defendants are liable for asserting their right of entry with violence. In order to make what transpired on the 6th a justification of the acts done on the 7th, so as to bring the case within the proposition of the defendants’.counsel, something more than a momentary possession must have been acquired on the 6th ; it must appear that the defendants took an actual peaceable possession, which was unabandoned down to the 7th, so that in what was done on the 7th the defendants stood in the attitude of defending their possession, and not invading the plaintiff’s possession by violence and with strong hand. Did the evidence tend to place the parties in this attitude ? If so the defendants were entitled to the charge requested. The most favorable view for the defendants, is that presented by the defendants’ testimony, and that is insufficient for that purpose. The entry on the 6th certainly could have no effect upon the forcible entry op the 7th, unless it was an actual taking of a present possession. It is difficult to regard it in that light. It is true it was a demonstration in that direction, but it looks more like an act preparatory to taking possession on some future occasion. Nothing was said indicating to the plaintiff that the defendants regarded that entry as a possession, and no request was made to the plaintiff to leave. The mere act of storing goods there is not necessarily a possession. It did not exclude the plaintiff from his possession or occupancy. It is said to be sure, that the evidence tended to show that the plaintiff made no objection, and that Perry supposed him satisfied. Satisfied with what ? Satisfied that the defendants might store those goods there and go off leaving the plaintiff and his family in possession of the house as theretofore, for the time being at least. It is stated also that Perry supposed this was done according to the understanding. What was that understanding entered into in March ? It was that the plaintiff would move out into his own house if Perry would help him move his goods, but no particular time was specified. Perry did not on the 6th offer to help the plaintiff move his goods according to that agreement, or ask the plaintiff then to carry out that agreement or understanding. This evidence tends to show that *113Perry might have supposed that the plaintiff intended to abide by it, and in a reasonable time comply with it, but he had no reason to infer that the plaintiff had by what was done on the 6 th, vacated the premises and turned over the actual possession to him, when the obvious fact and every indication was to the contrary. But if it could •be regarded in law as an entry and taking of possession for any purpose, it was but momentary and fictitious, not actual and continuous. The defendants’ counsel claim that if the mere fact that the defendants on the 6th entered peaceably would not justify the forcible entry on the 7th, yet if the jury could have found that the defendants continued their possession from the 6th down to the transaction on the 7th, they were justified, and claim that this question should have been left to the jury. But the jury would not have been warranted in finding that defendant was in continuous possession from the entry on the 6th to the entry on the 7th. It would have been a finding against evidence. For the purposes of the question involved in this case, fact and not fiction must govern. The condition of the parties on the 7th when the alleged trespass for which the jury have found the defendants liable was .committed, must be regarded in law as it was in fact, that is, that the defendants were out of possession and the plaintiff in possession of the dwelling house in question, especially as the jury found that the defendants’ entry on the 6th was not by the plaintiff’s consent. The entry of the defendants therefore on the 7th being forcible and with strong hand, was a trespass; not for want of a right in the defendants to enter, but for the assertion of that right in an unlawful manner. The case is withiu the principle of Dustin v. Cowdry, 23 Vt. 631. To maintain the contrary conclusion the defendants’ counsel have referred to several authorities, but they are not in point upon the question involved. Mussey v. Scott, 32 Vt. 82, cited by the defendants’ counsel, is a fair illustration of the character of the cases cited. The facts in'that case and the legal question involved were very different from this case. The defendant who was in possession of the house, left it temporarily vacant through the day, having fastened the doors, and during his absence the plaintiff, who had title and right of entry, forced open the door, took possession, moved out the defendant’s furniture, fast*114ened the doors and posted up a notice on the door that he was in possession. The defendant after that on the same day returned and re-entered. The question was whether such entry by the plaintiff invested him with such a possession as would enable him to maintain trespass against the defendant for his re-entry. The court decided that it did. The question whether the plaintiff had by ■such entry acquired the right to return and expel the defendant forcibly did not arise. The defendants’ request was properly refused.

But it is claimed that there was error because the court refused the request generally, and did not comply with that part of it which assumes that the pleadings admit the title in the defendant. The defendants’ counsel claim that that part of the request was proper, as it would affect the damages. It was material upon the question of damages. But the request was an entire proposition, made in reference to the plaintiff’s right to recover, and not in reference to dam-: ages, and being properly denied, it is not error for the court to omit to single out a particular part of it and apply it upon the question of damages, if there is no affirmative error in the charge upon the question of damages. But aside from this, we must presume the court did, upon the question of damages, instruct the jury in substance that the pleadings admitted title in the defendant, as the exceptions state that as to the subject of damages, both actual and exemplary, the court charged the jury in a manner satisfactory to the partios and no exception was taken. As the defendant was satisfied with the charge on the question of damages in the court below, he can raise no question upon it here.

The judgment of the county court is affirmed.

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