This is not an action for use and occupation, but for a balance alleged to be due the plaintiff as the landlord of the defendant as rent under and reserved by a contract whereby the plaintiff leased to the defendant- certain lands for a term of three years. Such is the averment of the complaint filed in the circuit court. The pleas were (1) the general issue; (2) that the “defendant did not rent from plaintiff any lands during the years 1890, 1891 and 1892, as alleged in plaintiff’s complaint, and was not the tenant of said plaintiff at any time during said year ;” and. (3) payment. The plaintiff joined issue on each of these pleas. On the trial there was evidence on the part of the plaintiff tending to show that he leased the land referred to in the complaint to the defendant for the years named, the defendant agreeing to pay him a rental of one thousand pounds of seed cotton for each year. On the other hand, there was the testimony of the defendant and two or three other witnesses to the effect that the defendant occupied the land during each of these years as the tenant of Mr. Slaughter, paid the latter a stipulated *240sum therefor, and that he never at any time rented the land from the plaintiff, or went into possession of it under him, or agreed to pay him for it. This question being made an issue in the case, and the evidence upon it being thus in palpable conflict, it should have been submitted to the jury as the defendant sought to have it submitted by his requests for instructions numbered 1 and 2. The plaintiff having expressly claimed upon a lease and as for rent, the lease being denied by special plea, and issue being taken upon this plea, it was essential to his right of recovery that he should prove the tenancy ; and this, though, it may be, he need not have so claimed.
The court also fell into error in assuming and charging that the plaintiff, Candee, had title to the land superior to the title of Slaughter from whom the defendant claims to haye rented the premises. This could not be affirmed upon the mere circumstance that the conveyance of Sarah H. Smith and others to Candee antedated the conveyances of E. S. Cobb and others to Slaughter, there being no evidence that Candee’s grantors themselves had title to the land.
Upon another trial, or rather before another trial is entered upon the defendant may, if he is so advised, plead the statute of frauds against the alleged lease of the plaintiff; and it is therefore unnecessary for us to decide the exceptions reserved to the admission of evidence of an oral lease. The better practice undoubtedly is to file the special plea even in actions before the justices of the peace, and on appeals therefrom in the circuit court when, as here, the statement of the cause of action or the complaint sets up a contract which is within the statute of frauds.
The judgment of the circuit court is reversed, and the cause remanded.