Opinion by

This is an action by the plaintiff to recover of the defendant for use and occupation of the premises No. 41 North Wilton St., Philadelphia. Plaintiff recovered a judgment in the court below and the defendant appeals. j

It clearly appears from the pleadings and evidence in this case that each of these parties claims title under the will of Mary Jane Staley, deceased; that the defendant has been in possession of the premises from the day of the death of the testator; that the plaintiff never has been in possession; and that the defendant is holding adversely to the alleged title of the plaintiff. This being so the plaintiff is not entitled to recover in this action for use and occupation of the premises; his remedy, if any, is by an action of ejectment, in which action he may recover mesne profits. This question does not seem to have been raised in the court below, but it is fundamental. The third assignment of error refers to the action of the court in entering judgment for the plaintiff and must be sustained.

The judgment is reversed.