for the purpose of enabling him to sell and convey it for George W. Kelly. The home defendant answered, denying that he had anything in his hands belonging to George W. Kelly ; and insisted that he had bought the land for 500 dollars, which was a full price, the land being sold subject to a debt due from the estate of John Kelly, the father, from whom the land was derived. The court below directed a commissioner to enquire and report what was the consideration on which the land in the bill mentioned was conveyed by George W. Kelly to John Q. A. Kelly. In obedience to this order the commissioner reported that although the conveyance purported to be in consideration of 500 dollars, and there was a receipt of George W. Kelly to John Q. A. Kelly for that sum, yet that the services which the latter claimed to have rendered to the former, for which there was due this sum of 500 dollars, were sustained by evidence entirely too indefinite to be the foundation of a statement of an account between the parties; and he therefore reported that the conveyance was without consideration. This report was excepted to by the defendant, on the ground that the commissioner had not stated the accounts between the parties; and it was insisted that the evidence was sufficient to enable the commissioner to make the statement. The cause came on to be heard in April 1848, when the court overruled the exceptions to the commissioner's report, and held that the plaintiff was entitled to have satisfaction of his claim out of the land in the bill and proceedings mentioned. And it was decreed that, unless the defendants should, within sixty days from the expiration of the present term of the court, pay to the plaintiff the sum of 100 dollars, with interest thereon from the 1st of May 1842 till paid, and his costs, a commissioner named should, after advertising, &c., sell the 1851. July Term. Kelly V Linkenhoger. 1851. July Term. Kelly V. Linkenhoger. said tract of land at public auction on the premises on a credit of six, twelve and eighteen months, in equal instalments, for the residue, after requiring so much of the purchase money to be paid in hand as might be necessary to defray the expenses and charges of sale. From this decree John Q. A. Kelly applied to this court for an appeal, which was allowed. F. T. Anderson, for the appellant, and BALDWIN, J. delivered the opinion of the court. The court is of opinion that the appellant has in his hands, of the purchase money of the land in the proceedings mentioned, more than enough to satisfy the debt and interest thereon, due from the absent defendant George W. Kelly to the appellee Linkenhoger; and therefore that the decree of the Circuit court is right upon the merits; and that the said decree being only interlocutory, it will be time enough, upon the final hearing of the cause, to decree against said absent defendant and to direct in his behalf the security provided by law in behalf of absent defendants. It is therefore adjudged, ordered and decreed that the said decree of the Circuit court be affirmed, with costs to the appellee Linkenhoger. Lewisburg. ADAMS v. MARTIN. (Absent Cabell, P.) September 5th. 1. Upon the trial of a writ of unlawful detainer, defendant sets up title in himself. Plaintiff may prove that the defendant entered on the premises under a parol lease from himself; though the lease proved was to continue more than one year. 2. The defendant claiming title under a deed made to himself and another as joint tenants, that other person is not a competent witness for him to sustain his right of possession. This was a proceeding by writ of unlawful detainer in the County court of Lee, in which William Adams was plaintiff and Wilkerson Martin was defendant. On the trial the defendant claimed to hold the land in controversy under a deed from David H. Campbell, administrator with the will annexed of Arthur Campbell, to himself and Joseph P. Bishop, bearing date the 28th November 1844. The plaintiff alleged that there existed a verbal contract between the plaintiff as landlord and the defendant as tenant of the land in controversy, commencing in the year 1840; and to prove the same, introduced a witness who stated that the defendant had informed him that he had come in possession of the land in controversy upon an oral contract with the plaintiff, that the defendant should proceed to improve the land and premises, and that he was to enjoy the use and occupation thereof until he should be thus paid for all the improvements he should make. And the defendant contending that from the statements made by the witness it appeared that the time of the continuance of the alleged lease was indefinite, and from its charac 1851. July Term. 1851. July Term. Adams V. ter not to be performed as an agreement or terminate as a lease within the period of one year from the alleged commencement thereof, he by his counsel obMartin. jected to the introduction of oral testimony to prove such lease, on the ground that it was in violation of the statute of frauds and perjuries. But the court overruled the objection and admitted the evidence: And the defendant excepted. In the further progress of the cause the defendant offered to introduce Joseph P. Bishop as a witness, but the plaintiff objected to his introduction, upon the ground that the witness was interested in the result of the suit; the land having been conveyed by Campbell to the defendant and the witness jointly, under which conveyance they claimed title, and which was relied upon and given in evidence on the trial by the defendant. The court sustained the objection and excluded the witness: And the defendant again excepted. There was a verdict and judgment for the plaintiff'; and Martin thereupon obtained a supersedeas to the judgment from the Circuit court of Lee county: And when the cause came on to be heard in that court, the judgment was reversed for the refusal of the County court to admit Joseph P. Bishop as a witness. this judgment Adams applied to this court for a supersedeas, which was allowed. J. W. Sheffey, for the appellant, and S. Logan, for the appellee, submitted the case. From ALLEN, J. delivered the opinion of the court. Inasmuch as it appears from the 2d bill of excep tions taken by the defendant in error to the decision of the County court excluding Joseph P. Bishop as a witness, on the ground of incompetency, that said Bishop was a joint tenant with said defendant of the premises, the possession whereof was the subject in controversy, that the defendant had relied upon the deed which constituted said joint tenancy with said Bishop in his defence, it seems to the court here that said Bishop was directly interested in the result of the suit, being seized with his co-joint tenant per my et per tout, the possession of the defendant was his possession, and his evidence tending to maintain such possession in the said defendant was evidence tending to establish a fact enuring to his own benefit; and that he was properly excluded as an incompetent witness. And it further seems to the court, that the County court did not err in overruling the objection of the defendant in error to the testimony set out in his first bill of exceptions, inasmuch as although the contract the evidence tended to prove may have been void under the statute of frauds, it was still competent for the plaintiff to shew that the defendant had entered under an agreement to rent the premises, and stood in the relation of tenant to the plaintiff'; and whether such tenancy was to endure for a year or a longer period, could not affect the question depending on the relation the parties bore to each other when the defendant entered. upon the premises. It is therefore considered by the court that the judg ment of the Circuit court, reversing the judgment of the County court, is erroneous; and the same is reversed, with costs to the plaintiff in error. And this court proceeding to render such judgment as said Circuit court should have done, it is further considered that the judgment of the County court be affirmed, and that the plaintiff in error recover of the defendant in error his costs by him about his defence in the Circuit court expended. BALDWIN, J. dissented. He said he thought the judgment of the Circuit court was wrong in holding that Bishop was an incom 1851. July Term. Adams V. Martin. |