The opinion of the court was delivered by
Taft, J.This is an action of ejectment. The plaintiff is entitled to a judgment unless the testimony of the defendant was properly admitted. He, the defendant, testified that he made a contract with Ruel Pember, from whom the plaintiff’s title is derived, by the terms of which said Ruel was to make no claim to the demanded premises, as against the defendant’s title, and claims that such contract created an estoppel. It is conceded by the defendant, that if this contract was the one “ in issue and on trial,” then he would be incompetent as a witness under s. 1002, R. L. He claimed that the contract afforded him a full defence; and the case shows that it was a substantial issue on trial. “ The words, contract in issue, as used in the statute, mean the same as contract in dispute or in question, and relate as well to the substantial issues made by the evidence as to the merely formal issues made by the pleadings.” Hollister v. Young, 42 Vt. 403. It is unnecessary to decide whether the contract, if proved, would amount to an estoppel or not. The testimony of the defendant should have’been excluded. Judgment reversed, and judgment for the plaintiff for the seizin and peaceable possession of the premises ; but on motion of defendant the cause is remanded if declaration for betterment is filed under the statute.