¶1This is an action of trespass in which
¶2plaintiff seeks to recover treble damages, under the statute, for. cutting and carrying away poplar trees from the described premises. Defendant appealed from a judgment of single damages, and plaintiff sued out a writ of' error from an order of the court refusing to treble the damages. Plaintiff claims title to the land from which, the trees were taken, by two patents from the state to. Crumb, and a quit-claim deed from him which was dated April 4, 1882, and recorded on the twenty-sixth of that month. Plaintiff was never in the actual possession of the land. He had it surveyed, but this was after the alleged trespasses were committed. The defendant purchased the land from Crumb in 1881, and received a receipt and contract showing the amount paid and to be paid, describing the lands, and providing that Crumb was to make a warranty deed to all except one hundred and sixty-five acres, to which he was to make a quitclaim. This receipt and contract the court excluded. The defendant also made evidence tending to show that the agent who sold him the land, with the consent of Crumb, gave him permission to take possession. There was delay in closing the transaction, the evidence tending to show that Crumb refused to make a warranty deed, and defendant declined to accept a quit-claim. The defendant went into ppssession, cleaned the drift out of the river-bed preparatory to floating' logs, and cut some *568timber, and was still in possession, it would seem, ftom April to July, 1832, during which time he cut the tree's in question. ' ' *
¶3This action of trespass can only be maintained where the plaintiff is in the actual or constructive possession of the premises. There is no evidence of actual possession on the part'of the plaintiff, or of Crumb, in the casé. The possession is constructive when the property is in the custody and occupancy of no one, but rightfully belongs to the plaintiff. In that case the title draws to it the possession. The foregoing principles of law have been repeatedly asserted by this court. Cochran v. Whitesides, 34 Mo. 418; More v. Perry, 61 Mo. 174; Reed v. Price, 30 Mo. 446; Ware v. Johnson, 55 Mo. 502. In Watts v. Loomis, 81 Mo. 237, it was held that the plaintiff, he having the equitable title and the prior possession, might maintain trespass. If the defendant Was in the possession of these lands from which the tre'es were taken under his contract for purchase, the plaintiff Cannot maintain this action. If it is contended that the defendant had abandoned the contract and possession thereunder before the alleged trespass, then those facts should have been made a'condition to the plaintiff’s recovery in the instructions. The contract of purchase should have been received in evidence, and also the correspondence with respect thereto. The defendant may áhow what he did by way of taking and continuing possession. The evidence tending to show a parol permission to take possession was properly admitted. The sale Of these lands by Bollinger county appears to have been made subsequent to the alleged trespass, and we do not see that the purchase of the lands by plaintiff at that sale can affect this case.
¶4It is evident the case was tried on a wrong theory, and the judgment is reversed and the cause remanded. This result also disposes of. the writ of error.