The plaintiff's lessor exhibited no title, but alleged that one James Pender, the actual occupant of the land, was his tenant, and insisted that the defendants, who came in as the landlords of Pender, were estopped to deny his (plaintiff's) title. He called a witness, one Hugh Kirkpatrick, who testified that he rented the land, described in the declaration as containing 366 acres, from plaintiff's lessor, from year to year, from 1853 to 1856, inclusive; that there were about twelve acres of it cleared, and within this space were the walls of a log cabin without a roof; that he was to pay, as rent, one-third of the crops produced thereon, and had the privilege of clearing more land, and in the event of his doing so, was to have the use of the place cleared for two years, with the surplus of the wood therefrom; that at the end of the year 1856, he gave up his lease, and then rented six acres, only, of the cleared land for 1857; that in January, 1854, he (witness) carried Pender in his wagon from a house in which he had previously resided (of which witness had a lease) to and upon the land in dispute and placed him in the woods thereof, about 500 yards from the cleared part; that he then told Pender that he might erect a house and remain there, and if he would clear any of the land for him he would pay him for it; that Pender assented to this and built a cabin at this spot, witness sending his negroes to assist him; and that he had remained there ever since.
On his cross-examination he stated that he did not know that Pender was aware where he was to be carried when his household goods (291) were put into the wagon; that he (witness) had proposed to him a week or two before that time, that he should remove to the roofless cabin aforesaid, to which Pender said nothing. He further stated, that Pender had paid no rent to himself or to plaintiff's lessor to his knowledge; that he had done a little clearing, but witness had never paid him anything for it.
The defendants then called Pender, who testified that prior to 1854 he had resided in a house leased from said Kirkpatrick which belonged to one Woods; that Kirkpatrick informed him, he wanted this house for another tenant and if he would give it up he would let him have another house on his (Kirkpatrick's) own land the situation of which was known to him; that he assented to this, and Kirkpatrick's wagon moved the other tenant, with his goods, to the house where he was living, and took in those of him (Pender), Kirkpatrick being along; but, instead of carrying him to the house promised, in spite of his remonstrances, he carried him to the tract of land in dispute; that witness then requested to be taken to the roofless cabin, above described, but this was refused, and his family and goods were put out in the woods, at the place described by Kirkpatrick, and left there on 17th of January, 1854; that witness and his sons made boards and built the cabin, in which he has since *Page 223 lived, without any aid from Kirkpatrick; that about a month or more afterwards, Kirkpatrick proposed to him to clear land for him, and that he would pay him for it; that he had done some clearing, but had never received any pay for it; that when Kirkpatrick put him on the land, he said to him: "Here is a place to which there is no good right; if you will build a house you may be able to stay here, perhaps, five, six, or ten years, or your lifetime"; that he never had any communication with Foust nor Kirkpatrick, except as above stated, in relation to the occupation of the land.
The defendants offered to prove title to the land in themselves, but this was objected to and ruled out. Defendants' counsel excepted. They then offered to show that Pender, subsequently to being placed on the land, became their tenant, which was also objected to and ruled out. Defendants again excepted. The writ was issued in November, (292) 1857.
His Honor instructed the jury, that if the witness Pender was carried by Kirkpatrick upon the land in question and left there with his consent or if after he was there, he agreed to be the tenant of Kirkpatrick, either would estop him and the defendants from denying the plaintiff's right to recover, and that in passing on the question of his consent, they might consider as evidence for the plaintiff, the fact of his having remained on the land.
His Honor declined giving any other instructions. Defendant's counsel excepted to the charge.
Verdict and judgment for the plaintiff, and appeal by defendants. It is stated in the bill of exceptions, that on the trial of the case the lessor of the plaintiff did not show any title in himself, but put his right to recover the land sued for upon the ground that James Pender, the tenant in possession, was his tenant, and that the defendants had been admitted to defend the suit as landlords and of course were bound by the estoppel. The defendants denied that James Pender ever had been the tenant of the plaintiff's lessor, and the question whether he had ever been so, was the first and main point in the cause. To prove that he had, the plaintiff's lessor examined one Hugh Kirkpatrick, who, if believed, clearly proved the tenancy of Pender; but to rebut his testimony the defendants examined Pender himself, and contended that if his testimony were taken to be true, then he never was the tenant of the lessor of the plaintiff. For the purpose of strengthening their position, the defendants offered to prove that after *Page 224 Kirkpatrick had carried Pender on the land in dispute, the latter had consented to become their tenant, and had thenceforward continued to occupy the land as such; this testimony was objected to, and (293) ruled out by the court, and upon the propriety of that ruling, depend, in our opinion, the merits of the defendant's application for a reversal of the judgment, and the grant of a venire de novo. The counsel for the plaintiff's lessor contends with much ingenuity, that it being stated by both the witnesses that Kirkpatrick had carried Pender upon the premises, and that he remained there continuously until the declaration in ejectment was served on him, he was necessarily either a tenant or licensee of the plaintiff's lessor, and that, therefore, he could not, until he surrendered or restored the possession to the lessor, become the tenant of another, and that consequently, the testimony offered to show that fact, was immaterial, and as such, was properly rejected. In order to ascertain the force of this argument, it is necessary to examine the testimony in relation to the manner in which Pender was carried upon the land by Kirkpatrick, and as the defendants had the right to have the credibility of Pender's account of the transaction submitted to the jury it is sufficient for us to examine his testimony alone. He states expressly that he was carried on the land and left there against his will. Can that be called an entry by him as a tenant or licensee of Kirkpatrick, who is admitted to have been the tenant of the plaintiff's lessor? We think not. It is a perversion of terms to say that one entered upon the land, or into the house of another by the license of that other, when, in fact, he was carried there by fraud or violence? To become the tenant or licensee of the person who had perpetrated the fraud or violence upon him, he must afterwards have willingly consented to do so. If it could be proved that he consented to remain on the land, not with the consent or permission of the person who had so improperly carried him there, but with the permission, and as the tenant, of some other person who claimed to be the owner of the land, we think the idea of his having become the tenant or licensee of the first, would be completely repudiated. Why not allow such proof? It certainly could not be rejected upon the ground upon which a lessee is barred from disputing his lessor's (294) title. That is founded upon the principle of good faith and privity between the parties. Certainly no such principle can apply between persons whose apparent connection has been brought about by violence and treachery. And it would be particularly inapplicable to a case where the person who committed the wrong told his victim that the land upon which he had placed him, had no owner, and he might probably remain upon it five, six, or ten years, or perhaps his lifetime. The testimony offered and rejected, was alleged to have a tendency to show that Pender had agreed to become the tenant of the defendants, *Page 225 and if admitted, might have shown that he never did voluntarily become the tenant or licensee of anybody else. If it had shown that, then the judge could have instructed the jury that Pender's continuance on the land was evidence from which the jury might infer that he had agreed to become the tenant of the plaintiff's lessor.
There was error in the rejection of the testimony, for which a venire denovo must be awarded.
PER CURIAM. Error.
Cited: Whissenhunt v. Jones, 78 N.C. 361; Clifton v. Wynne, 81 N.C. 160.