This was an action brought by the executors of Whitfield against the defendant, under the statute, to recover the possession of a tract of laud in Jasper county. The plaintiff proved that the defendant was in possession of the land, and that he rented it from Whitfield in the .year 1864; also proved the value of the yearly rent of the land, and that the premises in dispute was a part of the land which witness’ father, Robinson, owned in his lifetime. On cross-examination, the plaintiff’s witness stated that the defendant went into possession of the land in 1858, and had been in possession of it ever since; that Whitfield was never in possession of the land; that defendant never claimed the land as his own; that it was generally agreed by all the parties that the defendant should take fpossession of the land. After the plaintiff had closed his evidence the defendant made a motion to make McAfee and others, who were the devisees of the land in dispute under the will of John Robinson, parties defendant for the purpose of laying the foundation for the introduction of evidence to show a paramount title to the land in them, and to prove that the defendant went into the possession of the land as their tenant, which motion the Court overruled, and the defendant excepted. The defendant then introduced himself as a witness, and offered to prove that he was not a tenant of Whitfield, but was the tenant of the persons claiming under the will of John Robinson, who were sought to be made parties defendant; that John Robinson had been seized and possessed of the land for *54forty years prior to his death in 1857. This witness was rejected by the Court on the ground that plaintiff’s testator was dead, and the defendant excepted. The defendant offered in evidence a certified copy of the will of John Robinson for the purpose of showing title to the land in McAfee and others, which the Court rejected, and the defendant excepted. The defendant offered to prove by James Robinson, the plaintiff’s witness, the same facts which he attempted to prove by the defendant who had been rejected, which the Court refused to allow him to do, whereupon the defendant excepted. The jury found a verdict for the plaintiff, and the defendant made a motion for a new trial, assigning as grounds therefor the rulings of the Court as hereinbefore stated, which motion was overruled. Whilst we recognize the general rule of law that a tenant cannot dispute the title of his landlord, yet, under the statement of facts disclosed by the record in this case, we think the Court should have allowed the parties to have been made as proposed by the defendant, received the will of John Robinson in evidence, and also should have received evidence as to the identity of the land mentioned in the will, and evidence as to whether the defendant was in fact the tenant of the parties claiming under the will, or whether he was in possession of the land as the tenant of Whitfield, so as to have ascertained from the evidence what were the rights of the respective parties. And then the Court should have charged the jury as to the law applicable to landlord and tenant, and left the jury to find the facts under the evidence. There was no error in the rejection of the defendant Wilborn as a witness, the other party being dead. See Administratrix of Robertson vs. Leapbrot, decided at this term of Court. But we are satisfied this case has not been fairly tried on its merits from the statement of facts disclosed by the record, and therefore order a new trial.
Let the judgment of the Court below be reversed.