#### DEN ex dem. JACOB HARTZOG v. RANDOLPH HUBBARD.

In questions of boundary, the declarations of a deceased person are admissi. ble in evidence; but not those of a person who has removed from the state.

A person in possession under a claim of title, who receives from an opposing claimant a lease for a year of the same land, cannot, during that term, dispute the lessor’s title, or hold adversely to him.

Ejectment, tried at Ashe,. on the last Circuit, before his Honor Judge Saunders.

The lessor of the plaintiff in deducing his title, produced* first, a grant from the state to Robert Nall, dated in the year 1802, describing the boundaries of the land as “ beginning oh a chesnut near the wagon road, on the top of the Blue Ridge, &c., running west two hundred poles to a Spanish oak,” &c.; and, secondly, a deed- from Nall to himself, dated the 15th day of April, 1832, containing the same boundaries.

The defendant claimed title to the land in dispute, under a grant to Peggy Tyre, dated the 30th of November, 1831?. and then produced a deed from her to himself, dated the *2426th' day of March, 1832. To show the beginning of the grant to Nall, the lessor.of the plaintiff introduced two witnesses, who testified that one Callaway, who was an intelligent surveyor, and who was then dead, had pointed out to. them the chesnut tree, which, he said, was Nall’s beginning corner : that the tree had been cut down ; and that the stump claimed by the lessor of the plaintiff as the beginning of that patent, was the stump of that chesnut. tree. This evidence was objected to by the defendant, but was admitted by the Court. The defendant then contended, that, at the date of the deed from Nall'to the lessor of the plaintiff, the land was held adversely to Nal 1, by himself, under his deed from Peggy Tyre; and that therefore-the lessor of the plaintiff’s deed of the 15th of April, 1832, was void. To repel this, by showing that the defendant did not have the adverse possession of the land at that time, the lessor of the plaintiff introduced Peggy Tyre as a witness. She said, that she had settled on the land, supposing it to be vacant, and had taken out a grant for it in the year 1831. After that time, as she stated, she heard of the lessor of the plaintiff’s claim to the-land, and went to see him in January or February, 1832, when he informed-her of his claim; and that the land had been granted to Nall before the date of her patent : that she then agreed to give up the land; and the lessor of the plaintiff consented that she might remain for that year, and make a crop : that after this, the defendant purchased her right for twenty-five dollars, when she told him of the lessor of the plaintiff’s claim, and that she was then holding possession for the lessor. She admitted, that being dissatisfied, she had agreed with the defendant to hold-possession for him for a while. She stated further, that in the fall of that-year the defendant sowed wheat on the land, and the plaintiff, with her consent, ploughed up the wheat,-and sowed the land in rye. His Honor charged, that under these circumstances, the possession was not held so adversely as to make void the deed from Nall to-.the lessor of the plaintiff. The jury returned a verdict for the plaintiff; and the defendant appealed.

D. F. Caldwell, for the defendant.

*243No counsel appeared for the plaintiff’s lessor.

Daniel, Judge,

after stating the case, as above, proceeded : — On the first point, we 'are of opinion, that the evidence of the two witnesses, as to what Callaway the surveyor, who was then dead, told them about the chesnut tree being the corner of Nall’s patent, was admissible. This question has been frequently so decided in this state. Harris v. Powell’s Heirs, 2 Hay. Rep. 349. Tate v. Southard, 1 Hawks, 45. Standen v. Bains, 1 Hay. Rep. 238. Taylor v. Shuford, 4 Hawks, 132. The .rule of admitting hearsay evidence to prove the boundaries of lands must be confined to what persons now dead have said; for if they be alive at the time of the trial, though out of the state, their depositions ought to be procured. Jervin v. Meredith, 2 Car. Law Repos. 508.

Secondly. Peggy Tyre, in February, 1832, admitted Nall’s title, and took a parol lease of the land for that year, to make a crop on it. She, being so in possession, informed the defendant that she held the same under Nall’s title. The defendant, notwithstanding, took a deed for the land from her, dated the 6th of March, 1832; and she then agreed to hold possession for him for a while. It does not appear that Nall, or the lessor of the plaintiff, had any notice of the conveyance by Peggy'Tyre to the defendant, or of her agreement to hold possession for him, at the time Nall made the deed to the plaintiff’s lessor, on the 15th of April, 1832. We think with the judge who tried the cause, that the possession of Peggy Tyre, under all the circumstances, was not such an adverse possession as to render the deed from Nall to the plaintiff’s lessor void; but that her possession under the parol lease continued, and was attached to the better title, and was in law the possession of Nall, at the date of the execution of the deed to the lessor of the plaintiff, on the 15th of April 1832. We think that the motion for a new trial was correctly overruled by the Court, on both points,, and that the judgment must be affirmed.

Per Curiam. Judgment affirmed.