By the Court.
Lumpkin, J.delivering the opinion.
The only question in this case is, whether there was evidence offered by the plaintiff, as to the possession of the defendant at the time the action was brought, to take the case to the jury ? The Court below held there was not; and granted a nonsuit, and that is the decision complained of.
There had been a previous suit between the same parties, respecting the same land, which was dismissed, October 1852. The present action was filed the 2d and served the 3d day of March, 1853; and the state of the facts existing at that time, was these: Williams, the person contesting the title of the plaintiff, had been claiming the land for years before the first case was commenced in ,1844, and after that time. But acting probably under legal advice, he deemed it important not to be in the actual possession of the premises for the *220next six months after the first case was dismissed, inasmuch as the plaintiff was compelled to renew his suit within that time, or forfeit his right to do so afterwards. Williams therefore takes one Absalom Lively to a cabin which was the only building on the place, rents him the land for the year 1853, for twenty-five dollars, the door is nailed up, and the parties retire together; the witness being charged not to divulge the transaction.
On the 4th of March, 1853, Barnes the tenant of the plaintiff, goes to the house, lifts the door off the hinges, takes possession of the empty hut, not even finding the few old clothes that had been put there by Lively. Barnes remained until his crop was nearly made, when he was turned out by the joint act of Williams and Lively.
Under these circumstances, did the premises ever change possession, even if the contract between Williams and Lively had been bona fide? But if the arrangement was colorable only, and the jury had a right to find from the proof that it was, and likely would have so thought; then it is quite clear to our minds that the possession of Williams never was changed. This question, at any rate, should have been submitted to the jury, with a suitable charge from the Court, as to the law of the case.
Judgment reversed