The plaintiff introduced a grant to Daniel Thompson for the land in controversy, and proved that Thompson died before the date of the demise (viz., 29 January, 1858), and that the lessors of the plaintiff were his heirs at law. He further proved that the defendant was in possession at the time of the service of the declaration.
The defendant then introduced a deed, dated September, 1844, from the sheriff of the county of Moore, to Daniel W. McNair, the illegitimate son of the defendant, for the land in controversy — it having been sold for the taxes. She showed that McNair died in February, 1848, without leaving issue, or brother or sister, or the issue of such. It was further proved that she and her son Daniel were in the actual possession of the land from 1835 till his death, and there was evidence that after his death she continued in the actual possession for two or three years, and that during this time one Jollie and his wife entered upon the land *Page 34 and occupied the house with the defendant for some short time, and that the defendant left the premises sometime in the spring of 1851, leaving some of her effects in the house with Jollie and his wife. Jollie and his wife remained in possession about one year, when they left; and as soon as they did so the defendant returned to her dwelling-house, and has continued there ever since.
(16) The defendant offered to show that Jollie was holding the lands as her tenant, and for this purpose she introduced one McIver. The counsel for the plaintiff asked the witness if the contract between Jollie and the defendant as to the lease of the land was reduced to writing, and he stated that it was, and that he was the subscribing witness. The defendant's counsel then proposed to ask the witness if he did not hear Jollie, while he was in possession of the land, admit that he was holding under the defendant. This was objected to by the plaintiff, upon the ground that the contract between Jollie and the defendant was reduced to writing and was not produced on the trial.
The court rejected the evidence, and the defendant excepted.
It was admitted that the deed from the sheriff to McNair was only color of title.
The court charged the jury that if they believed the testimony to be true, the plaintiff was entitled to recover. There was a verdict for the plaintiff, and a rule for a new trial, which was discharged. Thereupon the defendant appealed. The only question in this case is, whether the parol testimony offered by the defendant, to show that Jollie was her tenant whilst he was living on the land in controversy, was admissible. We are of the opinion that it was, and, therefore, that his Honor erred in rejecting it. The testimony proposed to be given was simply the declaration of Jollie, made while he was residing on the land, that he was there as the tenant of the defendant. The fact that he was on the land was one which the defendant had clearly the right to prove by parol; and the declaration of the tenant was a part of the fact necessarily admissible for the purpose of explaining it. The terms of the (17) written lease between the defendant and Jollie were in no wise material to be shown, and hence it was unnecessary to produce it. In the settlement case of Rex v. The Inhabitants of Holy Trinity, 14 Com. Law, 101, it became important for the defendants to prove that the pauper had gained a settlement in another parish by the occupation of a tenant therein and the payment of rent therefor; and they were *Page 35 permitted to show those facts by parol, although the pauper held the tenement under a lease in writing. Bailey, J., said, "The general rule is that the contents of a written instrument cannot be proved without producing it. But although there may be a written instrument between the landlord and tenant, defining the terms of the tenancy, the fact of the tenancy may be proved by parol without proving the terms of it. It was unnecessary in this case to prove by the written instrument either the fact of the tenancy or the value of the premises."
In the case now before us, the fact of the tenancy having been properly shown by parol, the declaration of the tenant as to the person under whom he held was admissible by the same kind of evidence as pars rei gestae. This principle is well established in this State by several decisions, of which Askew v. Reynolds, 1 D. and B., 367, is the leading case. For the error committed in the rejection of the testimony offered to show that Jollie held the land in controversy as the tenant of the defendant, the judgment must be reversed and a venire de novo awarded.
PER CURIAM. Venire de novo.
(18)