(concurring): On the trial the defendant offered to show that he acted under the authority of one Hemphill, and that the said Hemphill was the owner of the land upon which the alleged trespass was committed. The Court excluded this testimony except for the purpose of *747showing the good faith of the defendant, and the jury were instructed that they could only consider it in that view. The defendant was not satisfied to have his liberty endangered by what the jury might capriciously find upon the question of good faith, and insisted that he had the right to prove and rely upon the actual legality of his conduct.
Ordinarily, on the trial of indictments for the disturbance of the possession, such as forcible trespass and forcible entry, and also for the removal of fences, injuries to buildings and similar cases, the title to land is not permitted to be litigated, although, in some instances, the practical application of the principle has not been entirely free from difficulty. The rule, however, does not grow out of the doctrine of estop-pel, but is founded on the reason that the offence is treated as one against the actual possession, which possession is regarded as sufficient evidence of ownership. But where, as in this case, there is no actual possession on the part of the prosecu-trix and no evidence of title, or the right of possession in her beyond the possession of the defendant himself, it is not easy to understand how, even in the cases mentioned, a conviction could be sustained.
But the statute before us is of quite a different character, and by its very terms the title is necessarily put in issue. It requires that the person indicted must not be “ the present owner or bona fide claimant of the land,” and that the property carried off must be “ the property of the owner of the premises or under his control, keeping or care.” If the act be done with a felonious intent, it is larceny, and if without such intent, it is a misdemeanor. Considering the peculiar wording of the statute and its highly penal character, and especially in view of the fact that under it one may be indicted for larceny (in which case it is always competent to show the real ownership), it is not seriously contended that the defendant may not show title in himself or in those under whom he claims.
*748This very important right, however, is controverted in the .present Case by reason of the application of a rule of practice known as estoppel, and which has hitherto been considered as peculiar to the trial of civil cases. To say the least, its application to criminal trials of this character would be unusual, but conceding, for the sake of the argument, that it obtains in all its rigor on the criminal side of the docket, I am wholly unable to understand how it applies to the present case. If, as contended, the estoppel grows out of the relation of landlord and tenant, how is it possible that the tenant can be convicted of an unlawful entry upon his own premises ?
“The tenancy does not exist until there has been an entry by the tenant, and when the entry is made,” says Justice Ashe, in Barneycastle v. Walker, 92 N. C., 198, “the estate is absolutely vested in him (the lessee) as if by grant for the period of time mentioned in the lease,” and it is there decided that he may maintain an action of tort if the landlord enter and dispossess him. So, too, he may indict the landlord if he enters and removes a fence from the premises (State v. Piper, 89 N. C., 551), and on the other hand, the tenant is not indictable if he tears down or injures a building on the same. State v. Mace, 65 N. C., 344; State v. Whitener, 92 N. C., 798.
This is too plain to require the citation of authority,-but the difficulty seems to have been surmounted on the argument by treating the defendant as a tenant for all of the purposes of a criminal prosecution, and stripping him of that character for the purposes of his defence. This position seems to be based upon the idea that the primary object of a contract of lease is to build up the constructive possession of the landlord within the boundaries of some, perhaps, unregistered or unknown deed under which he claims, and that the supposed inconvenience resulting from an interruption of this mere incident is to override every other consideration and to work a material change in what are everywhere *749regarded as the principal and essential features of such a contract.
The defendant never leased the land upon which the alleged trespass was committed, but it is argued that inasmuch as he leased a specific part of the same tract, and as his actual possession of this part was a constructive possession of the whole, he is thereby estopped to deny the landlord’s title to that portion which is outside of the boundaries of his lease. Now, it is quite clear that the estoppel of a tenant is founded only on the possession, and that this possession must be actual is evident from the fact that the relation is not established until entry, and it must of course be the actual possession which the “ landlord delivers.” Taylor’s Landlord & Tenant, § 706. The possession must necessarily be co-extensive with the estoppel, and if the estoppel works against the defendant as to the outside land, there can be no escape from the conclusion that the possession must also accompany it and protect him from being treated as a trespasser. To hold otherwise wmuld offend the principle of mutuality which lies at the foundation of every estoppel. The logical outcome, therefore, of the argument is that the defendant cannot be indicted at all, no matter how frequent and destructive his depredations may be. Notwithstanding such an anomally, it is argued that he should be convicted as a trespasser, and evils are suggested as likely to ensue upon a failure to hold him to criminal responsibility.
The only way to punish such offenders under the statute is to follow the principle laid down in the decisions of this Court, the works of eminent text-writers and other authorities, and these abundantly establish that, although the possession of a part by a tenant will give constructive possession of the whole to the landlord, yet, as between the landlord and tenant, as to the outside land, there is no privity, and without privity there can of course be no estoppel. This is directly sustained in Scott v. Elkins, 83 N. C., 424, and also *750Lamb v. Swain, 3 Jones, 370. So in Taylor on Landlord and Tenant, § 707, it is stated that “ the estoppel of the lessee does not extend to other lands of the lessor not included in the demise;” and in Lawson on Rights and Remedies, it is laid down that “ accepting a lease for part of a tract does not estop the tenant from denying the landlord’s title to the residue of the tract.” See also Wyoming Cool Co. v. Price, 81 Pa. St., 156 ; Wilborn v. Whitfield, 44 Ga., 51; Pederick v. Searle, 5 Serg’t & Rawle, 236.
In opposition to these well settled principles there is, I think, an entire absence of authority. The cases cited to the effect that where a tenant occupies, in connection with his tenancy, lands outside of the lessor’s, he is presumed to hold for the benefit of his landlord, do not, in my opinion, bear upon the question. It is a mere presumption, usually raised between the landlord and others, and may alwaj's, says Mr. Washburn, be rebutted, 1 Yoh, 590.
In reference to the evils suggested by a contrary ruling, the answer may be found in the language of RuffiN, C. J. (Lenoir v. South, 10 Ired., 239), that “ the law cannot suppose that an owner will not look to the condition of his property” and -expel intruders. There is no more reason why he should not guard against the encroachments of his tenants than those of his neighbors or others. Again, it is not true that a tenant can attorn and give a stranger the benefit of his constructive possession, for just so soon as he steps beyond the boundaries of his lease he may be treated as a trespasser, indicted under this very statute and expelled from the premises. The constructive possession by reason of his legitimate occupancy enures to the benefit of the landlord, and is added to the restored possession in the computation of time in ripening the title Furthermore, if the tenant has such a possession of the outside land as will estop him, the landlord, as I have remarked, will not only be prevented from indicting him as a trespasser, but it is not easy to understand how he *751can deprive him of the possession by a civil action or otherwise, until the expiration of the term.
Apart from all this, and independent of the principle of estoppel and. possession — its necessary attendant — I cannot see how the defendant can be convicted, if there be, as is contended, any privity as to the outside land. It will be observed, that in order to sustain the indictment, it was necessary to show that the prosecutrix was the owner of or entitled to the possession of the land upon which the alleged trespass was committed. If there was any evidence of this (and there seems to have been none except the statement that the father had conveyed it to her) it was not submitted to the jury, and his Honor seems to have held that such proof was unnecessary on the ground that by reason of the defendant’s possession of a part, she was in the constructive possession of the whole. The case was made to depend, so far as the prosecutrix’s ownership was concerned, solely upon the possession of the defendant. Now, as T have before stated, if a constructive possession is sufficient to show title in order to convict the defendant, he surely ought not to be deprived of it for the purpose of his defence. But the difficulty is still more apparent when we consider that the possession of a part is not technically the constructive but the actual possession of the whole; for, says RuffiN, C. J., “constructive possession is such a possession as the law carries to the owner by virtue of his title only, there being no actual occupation of any part of the.land by anybody. * * * But when the owner is actually possessed, by residence, for instance (and I will add, or by his tenant), of a part of a tract of land, he is actually possessed of the whole.” Graham v. Houston, 4 Dev., 237. So, according to the principle invoked, we have the case of a person being convicted of an unlawful entry upon land of which he is in the actual lawful possession. Indeed, it seems to he conceded that he is not a trespasser, and yet it is urged that he may be indicted as such. The Court *752is not prepared to make a departure which introduces a rule that, deprives the landlord of swift and efficient remedies against the tenant who trespasses upon adjacent unleased land, and, besides-all this, is not only opposed to our own decisions, but the standard text-writers and other authorities on the subject. The Court is of opinion that, as between the landlord and tenant, there is no privity as to the outside lands where the leased premises are specificalty defined by metes and bounds, and that as to such outside lands the defendant may be treated, under the statute, as any other trespasser; and if he fails to establish his defence by showing title or good faith, he may be convicted and punished as such.
Por these reasons, I am of opinion that there was error in applying the doctrine of estoppel, and that there should be a new trial.