The defendant's written acknowledgment that he held the land as tenant of the plaintiff without prejudice to the defendant's right to bring a suit in equity, is not conclusive evidence of a promise to pay rent. All admission of the plaintiff's title, that might affect the defendant's claim in a suit in equity, was expressly withheld. The defendant was not to be estopped by his tenancy to assert his own rights, whatever they were, in such a suit. The acknowledgment contains no allusion to rent. And it might be argued that its silence is significant; that if the paper had been intended as evidence of the defendant's obligation to pay rent, it would have mentioned the subject, and disclosed the purpose for which it was written, and probably would have stated how much rent was to be paid, or indicated how the amount could be ascertained. It was apparently intended to be evidence, not of such an obligation, but of an existing relation of landlord and tenant, acknowledged by the defendant at the plaintiff's request, for some purpose of the plaintiff not disclosed in the writing, and consistent with an understanding that there was to be no rent. And as the legal construction of the writing does not make it a contract on the subject of rent, parol evidence is admissible on the question whether there was a contract on that subject.
The plaintiff's evidence shows that the acknowledgment of tenancy was made to enable the plaintiff to complete the foreclosure of a mortgage, and leaves it doubtful at least whether there was an understanding that rent was to be paid: while the defendant's evidence goes to disprove such an understanding. From the defendant's occupation and acknowledged tenancy, the law does not imply a promise to pay rent. The question whether there was such a promise, is a question of fact. There might be a question whether there was evidence on which the jury could fairly find a promise, and whether a verdict for either party was against the evidence: but no such question is raised in this case.
The practice of shifting the burden of proof by a legal presumption is largely abandoned in this state. It often materially *Page 286 encroached upon the province of the jury, but caused less injustice when parties were not allowed to testify than it would now. When courts assumed the power of excluding the testimony of the parties for reasons alleged to have been satisfactory in a certain state of society, they did not hesitate, by legal presumptions and other measures, to extensively control the jury in the decision of questions of fact. The tendency in this state is towards a correction of those errors, and the establishment and observance of the true line between law and fact, and between the duty of the court and the duty of the jury. That line being applied to this case, there is no presumption of law relieving the plaintiff of the burden of proof, and laying it upon the defendant. If the plaintiff's claim of a prima facie case means that he introduced sufficient evidence; to prevent a nonsuit, or that, if the defendant had offered no evidence, a verdict against the plaintiff should have been set aside as against the evidence, there is now no occasion to examine the claim If it means that the plaintiff's evidence shifted the burden of proof, the court at the trial rightly declined to sustain it.
Judgment on the verdict.
BINGHAM, J., did not sit: the others concurred.