(By
Judge Marshall,in response to the petition for a re-hearing.)
As to so much of the petition as relates to the opinion rendered when the case was formerly here, and to the *388facts and instructions given on the first trial, we need only remark, that with the former opinion we have now nothing to do, but to understand its principles and apply them to the present ease, so far as they are applicable, and that the facts appearing on the first trial, except so far as the same facts appeared also on the second trial, are only material as illustrating the former opinion. The instructions of the Court and the finding of the jury on the last trial, must be compared with the evidence introduced on that trial, and for that evidence we can look only to the bill of exceptions then taken. With these prefatory remarks we proceed to notice the objections directly made to the opinion last delivered, of which a reconsideration is sought by the petition.
1. In regard to the effect of the long continued possession of Bracket and his heirs, claiming the land in contest under Owen, whose heirs have conveyed to the lessors of the plaintiff. We did not presume that the jury had found for the defendants on the ground of their possession; because the evidence showed that up to the fall of the year 1811, Bracket looked to Owen for a title, and before the end of twenty years from that time the possession of the land had been abandoned by those holding it under Bracket’s claim, and the Court having correctly expounded the law upon these facts, which furnished no ground for presuming a deed, or for barring the entry under Owen’s legal title, by lapse of time, it could not be supposed that the jury founded their veidict on either of these inferences. Besides, even if it could be said that the evidence relating to Bracket’s application for a deed, in the fall of 1811, was such as to authorize the inference that he then obtained one, although the reasonable inference from that and other facts stated in the petition, is that he did not get one then or afterwards, then the case would be, that the jury might have found for the defendants on that ground. But this consideration would not render immaterial any error which the Court may have committed in relation to another ground of defence, on which the jury might also have found for the defendants. On the contrary, as they might have found either for the plaintiff or defendants, on either or both of the grounds *389of defence relied on, a verdict for either party could not be supported if there was any error in the instructions of the Court by which it might, probably, have been affected.
An objection to a deposition on account of the want of a dedimns, (when a dedimus is necessary,) must be made in the Circuit Court, & cannot be avail-ably made, for the first time, in this Court.2. In relation to the character of the adverse possession, which will bring the case within the statute against champerty, and the effect of a verbal contract made prior to the commencement of such possession,.but carried into effect in good faith, by deed made during the existence of such possession, we adhere to the opinion already expressed, and deem it necessary only to repeat, that a parol contract is not void under the statute of frauds, nor so decided by the adj udged cases in this state, but is effectual for some purposes, though an action or suit cannot be maintained upon it.
3. The instruction explaining what constitutes an actual possession, upon the inaccuracy of which, as applied to the question of an actual adverse possession which would render the deed to Cardwell champertous and void, the judgment is reversed by the opinion rendered, would be abstract if it be not understood as intimating that if such possession existed in this case, at the date of the deed, it was void, and this intimation is expressed in a subsequent instruction. The effect of the two together is such as is stated in the opinion, and for the reasons then stated, we think they were calculated to mislead, and were, therefore, a proper ground of reversal, in a case in which the jury might have found either way as to the possession.
4. It is true, as stated in the petition, that the deposition of J. D. Owen appears to have been taken in Texas, and though there seems to have been an order of Court for taking it, and the caption and certificate authenticating it state, that there was a commission for the purpose, no dedimus is contained in this record. This defect, if existing in fact, would undoubtedly have formed a valid objection to the reading of the deposition in the Circuit Court. But it does not appear that they were objected to on that ground, and in this Court the only objection urged was to the incompetency of the witness. We did not, therefore, think it necessary, and especially as the affirmance or reversal of -the judgment did not depend on *390that deposition, to notice a defect which may have been waived, or may not, in fact, have existed. There was no exception taken by the defendants to the admission of the depositions; and the objection on the ground of competency, was noticed and decided, because if availing, it was permanent in its character, and would have rendered it unnecessary to say any thing about the effect of the verbal contract. But the objection that there was no dedimus, if it had been sustained, would not have excluded the deposition of C. L. Owen, taken in this state, upon examination by both parties, and which, of itself, though not so strongly as if taken in conjunction with the other, conduces to prove all the facts on which the question as to the effect of the verbal contract is raised and decided in the opinion.
T. P. Wilson for plaintiff: Sprigg and Cates for defendants.The petition for a re-hearing is overruled.