Opinion by
Xephart, J.,
In an indictment for forcible entry or forcible detainer, neither the right of possession nor the title to the freehold comes into question. The only consideration is the actual possession and the force used: Penna. v. Robinson, 1 Addison 14; 57 Pa. Superior Ct. 204. To sustain an action the prosecutor must show a prior possession and an unlawful detention by force and with a strong hand, or by menace or threats: Commonwealth v. Brown, 138 Pa. 447. This possession cannot be assumed. It must be proven,. and courts should be slow to convict where the evidence of prior possession is doubtful or uncertain. The occupant may be wholly without the right of property or possession, yet under this criminal proceeding his possession, secured without force or violence, will be protected. The defendants produced evidence from which their prior possession might be found and contend that the court, in submitting the question of prior possession to the jury, disregarded the effect of their evidence tending to show the priority of their possession. The defendants’ predecessors in title had been the owners of the land in dispute. They had entered into an agreement with the elder, Lutz, the prosecutor’s predecessor in title, whereby the property was temporarily transferred to him for certain purposes, to wit: the payment of a mortgage. It was contended that this possession was for the use of the defendants’ predecessors in title and his acts were for their benefit; but the court below virtually withdrew the question of defendants’ priority of possession from the jury. It disregarded, in the charge, appellant’s theory respecting the elder Lutz’s possession. It is quite true that the sheriff’s sale of property on a mortgage to one who holds possession by lease, or license, under the execution debtor, changes the legal aspect of the possession *244of the occupant of the premises; but where this occupant of the premises holds by an agreement with the execution debtor, that he will retain possession until the mortgage debt is paid, and he afterwards purchases the mortgage and through foreclosure proceedings instituted on this mortgage, purchases the property, it is questionable whether he does not hold for the use and benefit of the persons with whom he had the agreement. Such was the situation here. Where a person believes he has an honest claim to property, and enters into possession without force or threats, cultivating the ground, repairing the buildings, he should not be subjected to the hazard of a criminal prosecution to determine a doubtful claim of possession or property. A civil remedy has been provided in case of disputed possession for those believing they own the property. The criminal action of forcible entry or forcible detainer was not intended to try title but is to prevent unwarranted seizures and detentions under such conditions as may cause a breach of the peace. The jury should have been instructed that one acting in good faith, under a claim of right, who honestly believes his possession to be valid in law, should not be convicted merely because an apparently better record title may be in the one who asserts a contrary possession. The entry of defendants on the premises was peaceable, without force, threats, menaces or breach of the peace. The property was unoccupied at the time. For such entry on a vacant premises without right, the title being in another, the law provides a speedy remedy for securing possession of the property. The Act of March 31, 1860, P. L. 382, clearly defines what constitutes the offense of forcible entry and forcible detainer. It provides that “when any person shall, with violence, and a strong hand, enter upon or into any lands or buildings, either by breaking open doors, windows or other parts, or by any kind of violence or other circumstances of error......turn out by force, or threats or menacing conduct, the party in *245possession, each person so offending shall be guilty of forcible entry.” These words imply that either the entry or the detainer must be accompanied with words or acts calculated to alarm or frighten the most timid: Thompson v. Commonwealth, 116 Pa. 155; Commonwealth v. Brown, supra; Kramer v. Lott, 50 Pa. 495. It is not necessary that actual violence be used, but the use of threats, menaces, signs or gestures, such as may give ground to apprehend personal injury, are sufficient: Com. v. Robin, supra. As the evidence was not sufficient to convict of forcible entry, nevertheless, if the prosecutor had a prior possession and the defendants, in detaining the property, violated the terms of the statute, as interpreted by the decisions of the courts, that evidence would be sufficient to convict on that count. The evidence upon which the Commonwealth relied to sustain this branch of the prosecution was the expression of one of the defendants, made in the presence of the other: “We won’t get out and you are not able to put us out.” The court, at the conclusion of its charge instructed the jury, “if, in your judgment, the evidence is stronger in behalf of the Commonwealth and satisfies you, beyond a reasonable doubt, that the defendants went there and took possession and locked the doors and repaired the house and took possession of the place and indicated a disposition to keep it, whereby the Lutzes were actually forced off the place, then you may convict......It is not a question who owns the place. It is a question whether one out of possession could go in and take possession and then exclude the other by declaring his intention to hold it. That is all there is in this case and if you find that fact as the Commonwealth alleges it, you ought to find the defendants guilty.” This clearly did not present the crime of forcible detainer nor did it bring to the attention of the jury the effect the language used had on the mind of the prosecutor. Admitting that the words embodied a threat, the prosecutor may have treated it lightly, may not have been put in fear by it. The prosecutor has some *246difficulty in saying that the use of these words did provoke fear in his mind. There is also the intention of holding land present in every adverse possession, but the occupier is not thereby guilty of forcible detainer. Whether the words would alarm or frighten the prosecutor,. or were intended to or calculated to do so, considering the conduct of the defendants, was for the jury, under proper instructions from the court. They should further determine that by means of this force or threats, the possession was withheld or detained from the prosecutor. The eighth and tenth assignments of error are sustained.
There was no evidence to support a conviction of forcible entry and the jury should have been so instructed.
The judgment is reversed and a venire facias de novo is awarded.