#### Doe on the demise of DANIEL FOUST v. G. W. TRICE et al.

One who comes in as landlord to defend an action of ejectment, cannot object that no notice to quit has been given to the original defendant.

The Act of 1861, (2d extra session) chap. 10, sec. 4, did not affect questions, as to the continuance of causes coming before a court, whose sittings commenced upon Monday of the week, during which, the act'was ratified-.

An occupant is incompetent to give evidence for the defendant in an action brought to recover the land, of which he is in possession.

The declarations of an occupant, as to the manner in which he came into possession of the land, in question, are competent, as evidence against the defendant, in an action of ejectment.

Ejectment, tried before Bailey, J., at the Fall Term, 1861, of Orange Superior Court.

The case was called on Thursday of the term, when the defendant alleged he was not ready for trial, and prayed a continuance, 1st, for the absence of James Pender, the occupant of the land, in dispute, who was detained from Court by sickness ; that he expected to prove by Pender that he never was the tenant of Foust, the lessor of plaintiff, but was in fact and in truth the tenant of the defendants; that he was carried on the land, by the force and fraud of one Hugh Kirkpatrick, and that being there, he became the tenant of the defendants before this suit. 'The Court ruled that Ponder was not a competent witness, if present, for which the defendant excepted. 2nd, for the want of the evidence of one Wm. Gr. George, which was set forth in the affidavit and admitted by the plaintiff. The lessor of the plaintiff exhibited no title, but alleged that James Pender, the occupant of the land, was his tenant, and insisted that the defendants, who were admitted to defend as landlords of Pender, were estopped to deny his (plaintiff’s) title. He called as a witness the aforesaid Hugh Kirkpatrick, who testified that he rented the land, in question, from the plaintiff’s lessor, in the last of the year 1853, or the first of 1854; that he was to give, as rent, one third of the produce of the then cleared ground, and if he cleared new ground, was to have the product of that rent-free *491for two years; that he did not clear any new ground, but cultivated the cleared land, or part of it, during 1854-’5 and ’6; that at the end of 1856, he gave up the privilege of clearing, and agreed for the year 1857, to rent only the cleared land; that at some time during his lease, he could not say when, but which other testimony fixes to have been 17th of January, 1854, he carried James Pender from a house where he (Kirkpatrick) had a lease, upon the land in dispute, put out from his wagon the family and goods of the said Pender, in the woods, about twenty yards from a road, one-fourth of a mile from the cleared land, and then told said Pender that he might stay there, rent free, as long as he ha,d any thing to do with the land; that Pender gave his assent to this, and witness’ negroes assisted him in setting up forks and constructing a shelter, under which his family staid until they cut logs and built a cabin near by, in which they had ever since resided ; that Pender soon after cleared a patch of land for a garden, which he had ever since cultivated, but had never paid any rent.

The plaintiff then offered to prove the declarations of Pender, while in possession of the land, to the effect'that Kirkpatrick carried him upon the land by his own consent. This was objected to by the defendants, but admitted by the Court. The defendants offered to show title in themselves, which was. objected to by plaintiff and ruled out, and defendants’ counsel excepted.

The defendants produced evidence, tending to show, that Pender was carried on the land by- force and fraud, and did not agree to hold the land from Kirkpatrick or Foust.

The defendants’ counsel moved the Court to instruct the jury, that even if Kirkpatrick were believed, this action could not be maintained, because it was brought prior to the year 1857.

2ndly. That the defendant, Pender, was entitled to notice to quit, or' a demand of possession before the action could be maintained, of which there was no evidence.

His Honor instructed the jury, that if Kirkpatrick was not *492believed by them, the plaintiff was not entitled to recover, but if they believed, from his evidence, that Pender went to occupy the land under him, or that after he went upon the land, he consented to remain there under Kirkpatrick, the plaintiff was entitled to recover, provided they believed that at the end of the year 1856, Kirkpatrick had given up the woodland and taken a lease for the cleared land, only, for the year 1857, and if this were so, this action could be maintained, and there was no necessity for a demand of possession or notice on Pender to quit. The defendants’ counsel again excepted.

Verdict and judgment for plaintiff. Appeal by the defendants.

Phillips, for the plaintiff.

Graham, for the defendants.

Manly, J.

Kirkpatrick, at the beginningof the year 1854, entered on the land as the tenant of Foust, under an agreement that he was to hold,: for an indefinite time, the whole tract, paying as rent a part of the crop of each year, made on the cleared land, and was to have any land that he should clear, rent free, for two years. This certainly made Kirkpatrick* a tenant from year to year. He afterwards put Pender in possession of a part of the wood-land under an agreement that he might stay there as long as Kirkpatrick 'had any. interest in the land. Pender built a cabin and cleared a small patch and became the assignee of Kirkpatrick, in respect to the land of which he took possession, and was thus a tenant under Kirkpatrick, holding from year to year, so long as Kirkpatrick’s tenancy under Foust, might continue. The question is, how was Pender affected by the fact, that in 1856, Kirkpatrick agreed with Foust, to give up his tenancy in respect to the wood-land, and hold only the cleared land. In respect to Kirkpatrick, he had become a tenant from year to year, entitled to six months notice to quit, and Kirkpatrick held in the same way under Foust, and had a right to assign *493or make a sub-lease of the same estate. It follows, as we think, that the agreement made by Eoust and Kirkpatrick, could not have the effect of determining the estate of Pender and converting him into a wrong-doer or a tenant at sufferance, liable to be subjected to the cost of an action without notice of any kind. On the contrary, our opinion is, that the effect of the sublease was to communicate to Pender a right to have the same notice from Eoust that Kirkpatrick was entitled to, or, at any rate, to reasonable notice, so as to give him time to remove from the land before he was liable to an action. It would seem, therefore, if Pender had defended the action, and put his defense upon the want of notice, it would have been an answer to the action; but as he does not defend, and Trice makes the defense for him, and is allowed to do so upon the ground of being his landlord, the case is said to be altered. The application on the part of Trice, to be allowed to defend in the place of Pender, presupposes that Pender'is'the tenant of Trice, so that Pender having entered as the tenant of Eoust, must, on this presumption, have attorned or turned over to Trice, whereby he disclaimed or disavowed his tenancy under Eoust, and thus put himself in the wrong and dispensed with the necessity of notice.

Upon the first presentation of this question to us, we inclined to the opinion that as a landlord, who defends in place of his tenant, is only allowed to make such defense as the tenant could have made, and is concluded by any matter which would have concluded the tenant, Balfour v. Davis, 4 Dev. and Bat. 300, so he should be allowed to make every defense which the tenant could have made, had the landlord not interposed. But, upon further consideration, our opinion is, that the point is with "the plaintiff.

If we suppose Trice had not applied to defend in the place of Pender, but Pender had made defense himself, and at the trial, in reply to his defense, for the want of notice, the plaintiff had proved that, before the'action was commenced, Pender had accepted a lease from Trice and agreed to become *494his tenant, such proof would certainly have dispensed with the necessity of notice.

If we allow Trice, in defending the action as landlord, to be neither more nor less restrained than Pender would have been, it will follow that the application to be allowed to defend as landlord, and his being on that ground, allowed to defend in place of Pender, concluded the fact, as against him, that Pender had accepted a lease from, or had otherwise attorned and agreed to hold under him ; and Foust was thereby dispensed from the necessity of notice. That is to say, dispensed, by reason of such supposed disclaimer of tenancy under Foust; Archbold’s law of landlord and tenant, 53, Law Lib. 225.

On this ground, therefore, the holding of the Court below, on the principal point in the bill of exceptions, is supported.

Upon the other points, we think the ruling of the Court was also correct. There is nothing in the motion for a continuance to withdraw its decision from the ordinary discretion of that Court, unless it be the statute of 1861-2, ex. ses. chap. 10, sec. 4; and that turns out, upon examination, not to apply to it. The chapter of the statute in question was in force from and after its ratification, i. e., after the 3.1th Sept. 1861. The Court began its session on the ninth of the same month, and all acts of court, by the doctrine of relation, stand as if done on that day. There is no reason for excepting the acts of the Court, now in question, from the operation of this doctrine. Therefore, although the order of Court was not made until the 12th, it related back to the 9th, and was not affected by the statute ; Farley v. Lea, 4 Dev. and Bat. 169.

We are also of opinion, that the Court properly held that Pender, in case he had been present, would not have been a competent witness for the defendant. As tenant, in possession, he was directly interested in defeating plaintiff’s recovery ; for the legal sequence of such recovery, would be the eviction of the tenant from the land.

Pender’s continuing in possession of the land, warranted also the ruling of the Court, upon the admissibility of his declara*495tions, in regard to the nature of his possession. The principle of a person in possession being heard, through his declarations, to explain the act of possession, is now extensively applied, as will be seen by reference to the cases cited in second edition of Dev. and Bat. in a note to Ashew v. Reynolds, vol. 1, p. 367, and in the case of Marsh v. Hampton, 5 Jones, 382.

The circumstances, under which the declarations were made, may not entitle them to much weight, but'their admissibility and credibility are quite different questions, and triable, generally, by different tribunals.

The judgment should be affirmed.

Per Curiam,

Judgment affirmed.