Opinion oe the Court by
Judge Eobertson :While tbe oral sub-lease to the appellant Elrod by Dupont the lessee of Anderson as agent of the infant owners for the indefinite term of their minority was not enforcible, still, being void, it is available for protecting the appellant’s possession as a resulting lien for improvements (to an equitable extent) made by him with the sanction of both Anderson and Dupont in faith of an assurance that he might enjoy them during the said infancy.
The appellant’s affidavit for a continuance manifests due diligence in preparing for his defense and shows that the testimony of his absent witnesses would be material for establishing his lien and the extent of it.
It seems to this court therefore that the court below erred in overruling the appellant’s motion for a continuance.
Wherefore, the judgment is reversed and the cause remanded for further proceedings.