The plaintiff brought her action against the defendant for trespass quare clausum fregit-, and a verdict was rendered for her; whereupon the defendant moved the court for a new trial, upon several grounds. The court granted the new trial, upon the sole ground that there had been error committed in allowing the plaintiff to testify that her husband, who was dead, had purchased the property (land), upon which the trespass is alleged to have been committed, from John Elkins, herfather, who is also dead. The plaintiff excepted to this grant of a new trial on this ground, and assigns the same as error. The defendant brings his cross-bill of exceptions, assigning as error the refusal of the court to grant the new trial upon the other grounds in the motion.
1. We think the court erred in granting the new trial upon the ground on which he placed it. Mrs. Scott is a competent witness under the act of 1866, Code, §3854, unless she falls within some exception to that statute. She was allowed to testify what took place between her husband and father, they being dead, about the land mentioned. Neither the husband nor the father was a party to cause of action in issue or on trial in this case; the whole cause of action and matter in controversy was between the plaintiff, Mrs. Scott, and the defendant, Mathis, both of whom were alive ; she was clearly a competent witness, and it was manifest error to have granted the new trial on this ground; and this judgment is reversed.
2. The defendant insists that the court committed error in refusing the new trial on other grounds mentioned in the motion. And we are satisfied that the refusal to charge as requested in the ninth ground of the motion was error; that if plaintiff and defendant both claimed the land, and if defendant had the legal title, he was not a trespasser. This request should have been given, under the facts of this case; if a person takes possession of his *124own land, lie is not a trespasser, unless the person in has the right of possession.
3, 4. It is unnecessary to review each ground of the motion for new trial separately, as nearly every ground is well taken. If Mathis was the owner of land, he was not liable to the plaintiff, as he had the clear right to take possession of the same, so that the manner of his doing this involved no breach of the peace. When Mathis took possession of this land, if he honestly believed the same belonged to him, and not to the plaintiff, although he may have been mistaken, and if the jury should so believe from the evidence, then the plaintiff could only recover actual damages. If the land in' controversy belonged to Mathis, it would not authorize Mrs. Scott to recover damages for a trespass by Mathis on this land, because she had had the same exempted and set apart as a homestead to herself; she could acquire no right to this land under these circumstances, if Mathis really owned the land. The judgment refusing the new trial on the other grounds taken in the motion is likewise reversed.
It is ordered that the judgment complained of by the plaintiff in error in the original bill of exceptions be reversed, because, in the opinion of this court, Mrs. Scott is a competent witness. And it is further ordered that the decision and judgment of the court refusing the new trial upon other grounds in the motion, as complained by defendant in error in the cross-bill of exceptions, be also reversed for the reasons hereinbefore stated. And upon the whole, the judgment is affirmed.
Judgment affirmed.