The plaintiff is clearly entitled to á new trial, because the court charged the jury on an assumed state of facts. There was no evidence of any sale of the land to John O. Watts, the plaintiff’s father, or that any notes for the price were given, or that any contract of sale was made or cancelled or that notes for the price were returned and the deed given back. What any person other than the plaintiff or his father may have said on these subjects, was not evidence to affect him, nor was it evidence at all except as bearing on the credibility of witnesses. The court tacitly treated the mere declarations of a witness as evidence by which as declarations or admissions the plaintiff’s title could be directly affected. This was a grave error. All the testimony applicable to the real nature of the conveyance by James Watts to John C. Watts tended to show that the deed made was a deed of gift, not a conveyance founded on a valuable consideration. There was nothing whatever to show that there was any purchase or purchase price, or that any notes were given or returned, nor was there any evidence tending to show that the deed was given back to James Watts. On the contrary, he found it among the papers of John C. Watts after the death of the latter, and of his own will took it and destroyed it. If this deed of gift was made and delivered by James Watts with the consent and approbation of his wife, these two being the father and mother of John O. *396Watts, and if John O. accepted the gift and entered into possession under the deed and died while in possession, he was. the owner of the land as against both his father and mother, and neither of them could after-wards divest his title by abstracting the deed from his papers and destroying it. John C. Watts having died intestate, the title would descend to his wife and child as his heirs at law, and the plaintiff being that child and his mother having died intestate, leaving him surviving as her heir at law, he would have the whole title. If this is the truth of the case, he is entitled to recover prima facie; and to defeat him, some defence to the action must be established that affects him, that is, that shows that he has lost the title with which he was once clothed.
The court erred in not granting a new trial.
Judgment reversed.