#### DOE ex dem. OF SAMUEL HARGROVE et al. vs. ELI P. MILLER.

Whore A. demised to B. in writing a tract of land, and excepted thereout a certain Lot. one half whereof previously thereto lie had in writing demised to J. S., (and which had been surrendered by J. S.,) and the other half he had by parol agreed to lease to ,1. D., to whom* after the said lease to 33-, he demised in writing the entire excepted Lot: — Held that the exception in the lease from A. to B. was a good defence for one claiming under J. D., in ejectment brought by B. for said Lot — the validity of the exception not being dependent on the truth or falsity of the recital in the lease to the lessor of the plaintiff.

This was an action of ejectment, tried before his Honor, Judge Caldwell, at the Superior Court of law of Randolph County at Fall Term, 1852. The following facts were submitted to his Honor as of a case agreed.

“On ihe 22d day of January, 1848, Enoch Sawyer executed a written lease to the lessors of the plaintiff for seventy-five acres *69of land, including the Sawyer Gold mine in Randolph County, and bounded as follows, viz: Commencing at the entrance of the. Still house road into the ridge road, leading from said Sawyer’s dwelling house a northwest course, running up said road, that is, the ridge road to Gamer’s line — thence south on said Gamer’s line to the bran cli — thence down the branch to the still house — thence-up the still house road to the beginning, to have and to hold for the term of twenty years.” * ® m Excepting of the above, described 75 acres, the Wilborn and Dougan lot, with cabin near the still house, containing 1J acres. Also one-lialf of a lot lying-southwest of the ridge road, adjoining and opposite to the Sawyer-shaft, running to the hollow on each side of the ridge, and down the ridge to a lot now worked by Anthony &• Hoover, leased to T. & J. Fallow. Also two-thirds of the lot leased to Anthony &• Hoover for nineteen months, adjoining the Fallow lot N. E., and the Davis lot S. W. Also one-lialf the Davis lot leased to Heniy and one-half to Davis for ten jroars, <fcc.; which said lease was duly proved and registered in the Register’s office for said county. The said lease of 22d January, 1848, further provides as follows: That all or any of the above exceptions, the said King (one of the lessors) has the right and privilege of purchasing or quieting, and when any of t-heir terms expire, they are included in this lease. The Davis lot, embraced in the above exceptions, is included in the boundaries of the said lease of 22d January, 1848.

Previoústy to the execution of the foregoing lease by Sawyer to the lessors of the plaintiff, he, Sawyer, had executed to Micajah Davis (who had a house and improvements on the same and was living thereon) a lease in writing for one-lialf the said Davis lot, which had been handed back by Davis and taken up by Sawyer on account of some difficulty that they had got into, at which time Sawyer made a verbal promise to execute another lease to him for one-half of said lot, which was never done, further than the reservation in the aforesaid lease to the lessors of the plaintiff, to enable him to comply with his promise to said Davis & Heniy. That purpose was not known or explained to lessors of plaintiff at the time Sawyer executed to them the lease of 22d January, 1848. Previously to the 22d January, 1848, the said Sawyer had made a parol lease to one Thomas Heniy for the other half of the Davis *70lot, and after the execution of the aforesaid lease of 22d January, to-wit, on 1st day of March, 1848, executed a lease in writing to him for the same; and on 2d June, 1848, executed a written lease to him for the other half.

The defendant claimed title by various mesne conveyances from Thomas Henly. If upon the foregoing facts his Honor was of opinion that in law the lessors of the plaintiff wore entitled to recover, judgment was to be entered in their favor, that they recover their term and costs — if of a contrary opinion, judgment of non-suit. And his Honor being of opinion with the defendant, there was judgment of non-suit accordingly, and the plaintiffs appealed.

J. Ti. Bryan, for the lessors of the plaintiff.

Miller, for the defendant.

Battle, J.

We concur in (lie opinion expressed by his Honor upon the case agreed in the Court below. The lease executed by Enoch Sawyer to the lessors of the plaintiff on the 22nd day of .1 anuary, 1848, gave them a right to the possession of all the lands contained within the metes and bounds therein set forth, unless certain parts or lots of said land were excepted thereout. The case states expressly, that certain lots were so excepted, among which were “ half the Davis lot leased to Henly, and half to Davis for ten years.” The whole lot, then called the Davis lot, was excepted out of, and of course could not pass by, that clause of the lease to the lessors of the plaintiff. But the lease contains another clause, to-wit: that when any of the terms embraced in the exceptions expire, they are included in it. The counsel for the lessors contends, that under the operation of this clause, taken in connection with the facts stated in another part of the case, they are entitled to recover. Those facts are, in substance, that Sawyer had previously to the 22d of January, 1848, made a parol lease to Henly for one-half of the Davis lot, and had promised to make a lease to Davis for the other half, and that after the said 22d January, he, at different times, had executed leases to Henly, embracing the whole lot.

The counsel argues, that the reason assigned for the exception *71of the Davis lot, out of the lease to the lessors of the plaintiff, did not estop said lessors from showing that the leases recited, as having been made to Henly and Davis respectively, were leases by parol, and as such were void and of no effect under our act of 1819, 1 Rev. Stat. ch. 50, sec. 8. We agree with the counsel, that there was no estoppel; but we do not see how that can make any difference. The lot in question was in fact excepted, no matter what reason was assigned for it. The exception was absolute and unconditional, and did not at all depend upon the truth or falsehood of the recital, that leases for ten years had been made respectively to Davis and Henly. The counsel then argues, that the terms of the leases to Davis and Henly, which is different from the times of said leases, 2 Black. Com. 144,4 Bac. Abr. 171, expired by surrender or otherwise; and that by a clause in the lease to tlie lessors of the plaintiff, above referred to, they fell into it. We see nothing stated in the case agreed to support the position. The parol lease to Henly certainly did not expire in anyway; on the contrary, it was made effectual by the execution of a written lease to him for his half of the Davis lot on the first day of 'March, 1848. There was no lease of any kind to Davis in existence on the 22d January, 1848, and therefore there could be none to expire. His written lease was surrendered to Sawyer, the landlord, before the said 22d of January, and at the time he had only a promise for a lease; and the case states expressly, that the exception in the lease to the lessors of the plaintiff was made, in order to enable Sawyer u to comply with his promise to Davis and Henty.” A lease of Davis’s half was on the 2d June, 1848, for some cause not stated, and which we deem totally immaterial, made by Sawyer to Henly; and as the defendants claim under him, they were entitled to the whole Davis lot, at the time when the suit was commenced.

The judgment must be affirmed.

Per Curiam. Judgment affirmed.