It is insisted that we were in error in reversing this case because demurrer was sustained to certain pleas, in that the same defense was available under plea No. 7. But that plea was directed to the claim for "use and occupation," not to that of trespass; and there was no other plea to the claim of trespass under which the defense was available.
It is also insisted that we were mistaken in saying that it does not appear from the record that plaintiff had acquired possession of the land before suit was brought. The evidence in the record is not clear to this effect, but it is such as that an inference may be so drawn by the jury. But that was not given as a material respect in which error was made to appear in the record.
For assuming that plaintiff had re-entered, either by judgment of a court or by some other means, he cannot recover in trespass quare clausum fregit, or for use and occupation, for acts done by defendant while in the actual possession acquired peaceably under claim of ownership in good faith. And he cannot recover in trespass on the case or in other form of action for damages or mesne profits which were recoverable in the suit by him in which he secured that possession. That is the status of the parties as argued by counsel.
But the judgment is reversed for sustaining demurrer to pleas setting up the possession of defendant under claim of ownership adversely and in good faith during *Page 493 the time of which plaintiff complains, and in substance that there was no ouster of plaintiff.
Application for rehearing is overruled.
GARDNER, C. J., BOULDIN, and LIVINGSTON, JJ., concur.