delivered the opinion of the court. It is essential to consider, in the first place, the rights of the parties in the premises. The plaintiff entered under Murray Mumford, and also by the permission of Green, and whilst he was in possession. Murray Mumford appear to have no title to the lot, for none is shown. Green is the only person who appears to have had any interest in it, and that is a possession for nearly ten years. As against all but the rightful owner, Greeds possessory interest must prevail. By the deed of the pth of November, 1804, the defendant became clothed with all Greeds right, of whatsoever kind it might be ; and, by the instrument of that date, Green acknowledged that he held the improvements sold to the defendant, and promised to yield up possession to the defendant on the 1st of March after. Thus Green virtually became the tenant of the defendant, until the first of March, and, after that day, he became a tenant at sufferance.† Tenancy at sufferance is defined by Blackstone to exist, where one comes into possession of land, but keeps it afterwards, without any title at all. In the present case, the continuance of Green in possession, after his sale to the defendant, under an agreement to yield it up on a precise day, brings him within the spirit of this definition; and his remaining in, after the 1st of March, was without any title, and, consequently, he must, from that period, be regarded as in by the sufferance of the defendant. It is a most salutary principle, that a person holding the possession of lands for another, cannot, by his fraudulent acts in derogation of the rights of *157the landlord, change or controid those rights. It is evident, in this case, that the plaintiff did acquire his possession by the connivance of Green, and with a view, on the part of both, to defeat the defendant’s possessory title, acquired at an anterior period, for a valuable consideration, and bona fide. It is also apparent to me, that the' plaintiff’s title, under Murray Mumford, is merely colourable, and chat he, in fact, gained nothing from them ; and that the plaintiff must be considered as having acquired his possession under Green. Consequently, he stands precisely in his place, and must be regarded as a tenant at sufferance, since he entered before the 1st of March, by Green’s permission, and continued in after Green’s right to the possession was at an end. If this view of the subject be correct, as it appears to me to be, then the case of Wilde v. Cantillon* is in point. It was, in that case, determined by this that a tenant at sufferance could not maintain trespass against his landlord; for, as against him, he has no legal right of possession on which to found the action. If, however, the plaintiff is not to be regarded as a tenant at sufferance, still I think the nonsuit was correct. Trespass is a possessory action, founded merely on the possession, and it is not at all necessary that the right should come in question." If, therefore, the defendant can show himself entitled to the land itself, or to the possession, he cannot be rendered responsible to a person having neither a right to the land, nor to the possession. In this case it cannot be pretended, that the plaintiff has any right or interest in the land, or the possession. He has certainly nothing more than a naked possession; whereas the defendant is clothed with Green’s title, which is a possessory title of at least nearly ten years standing. *Yt may be laid down as an axiom, that no man can recover upon a claim of right to property against another, whose rights to the subject matter are superior to those of the person so claiming damages for a violation of his supposed rights. At common law, and prior to the statutes to prevent forcible entries, wherever a right of entry existed, the disseisee might lawfully regain the posses*158sion by force.* In a case, bearing analogy to the present, of personal property, the right or recaption exists, with the caution that it be not exercised riotously, or by a breach of the peace; for should these accompany the act, the party would then be answerable criminally ; but the riot or force would not confer a right on a person who had none, nor would they subject the owner of the chattel to a restoration of it to one who was not the owner. With respect to real property, the owner, having a right of entry, may, since the statutes, enter peaceably upon one who is in possession without right, by the very terms of those statutes.f If the in such case be with a strong hand, or a multitude of people, it is an offence, for which the party entering must answer criminally, but it would be an absurdity to say, that he must also be responsible in damages, as for an injury to the person who has no right, but is himself a wrong doer, consequence of his illegal entry. In the case of M'Dougal v. Sitcher and another,‡ the entry was considered peaceable, and therefore justifiable on the part of the owner; but Mr. Justice Livingston, in delivering the opinion of the court, very justly observed, that if the entry had been by breach of the peace, the defendants might, perhaps, have been indicted, but this would not have rendered the defendants trespassers against a party who had no longer any interest in the locus in quo. In the case of Taunton v. Costar,§ the defendant, who was a tenant from year to year, held over, after proper notice to quit, and the landlord entered upon him, Lord Kenyon observed, that the case was too plain for argument. “ If, indeed,” said his lordship, “ the landlord had entered with a strong hand to dispossess the tenant by force, he might have been indicted for a forcible entry; but there can be no doubt of his right to enter upon the land at the expiration of the term.” The same principle, is recognised by Runnington and Dalton.¶ I am warranted, therefore, in concluding, that, though the statutes of forcible entry and' detainer have so far altered the common law, as to render persons having a right of entry, indictable as for breach of the peace, in entering for*159cibly, yet, as respects the civil remedy, it remains, as it was before the passing of the statutes; and, consequently, where the party entering has a right to the possession, he cannot be made answerable in damages, to a party who has no right, and is himself a tort-feasor. If other considerations were necessary to illustrate the correctness of this position, they would be found by a reference to the pleadings in actions of trespass. It cannot, I think, be controverted, that if, in an action of trespass quare clausum fregit, the defendant shall plead liberum tenementum,* the plaintiff must either traverse the title set up, or, by a replication admitting the source of the derivative title, state a title in himself paramount to that of the defendant; but in no case where the defendant sets up a title, can the plaintiff reply de injuria sua propria alone.† If the defence set up be matter of excuse, as contradistinguished from matter of justification, then a replication de injuria sua propria puts the excuse in issue.
If, in trespass, the plaintiff might admit the title, and go for the force, there would be found some precedent of such pleadings; and the want of such a precedent is a strong argument against the plaintiff’s recovering, in the prdsent case, for acts done by a person who has the best possessory title.
I have hitherto considered the defendant as having entered on the plaintiff’s possession with force. The facts do not warrant the idea, that there was an assault and battery committed on the plaintiff, but this act surely would not naturally produce a dispossession. For aught I see, the entry was peaceable ; but if it were otherwise, on principle, I think the defendant has done no wrong to the plaintiff’s rights, for he had none. It has been strongly urged, -that this doctrine tends to tumult and violence, which the law ought not to countenance; but sufficient restraints will be found in the remedy by indictment, and in the liberality with which jurors will give damages where a wrong-doer undertakes to enter without right. In one point of view, the doctrine" is salutary, inasmuch as it will lessen the inducements, afforded *160by legal delays, to the unjust acquisition of the possession of real property. But with arguments ab inconvenienti, the court has no concern, if the law is, as I think it to be, so settled. It was supposed, that the decision of this court, in a case between the same parties,* had, in effect, decided the present question ; but, by reference to that case, it will be seen, that the only point there was, whether it was proper to grant a new trial in an action for an assault and battery, where, at all events, the damages must be small. The court do say, in that case, that the principle stated by the judge was incorrect; but, admitting it to be so in that case, it is a non sequitury that, in an action for a redress of a supposed injury to the property itself, it would also be incorrect. The judge there stated, that a party having the right of possession, had a right to enter on the party in possession, and use such force as was necessary to expel him. Very different considerations are applicable to an action for an assault and battery, and an action of trespass quare clausum fregit. In an action for the personal injury, the defendant, who is not in possession, cannot justify an entry and the exercise of personal violence, but in an action for an injury to the land itself, he may justify the force as respects the possession. In every point of view in which this case can be considered, I remain of the opinion, that the nonsuit was right; and such is the opinion of the court.
Rule refused.
2 Bl. Com. 150.
1 Johns. Cases 123.
Willes's Rep. 221.
2 Hawk. c. 64.
3 Term Rep. 292. 3 Bl. Com. 174.
1 Johns. Rep. 11.
7 Term Rep. 431.
Runnington, 60, 61. Dalt. c. 129.
9 Went. 99. 1C1. 180, 124, 133, 135, 101.
Lawes, 154.
3 Johns. Rep. 939.