
    Frederick Cox vs. Abraham D. Baird, Executor of Nicholas Dubois, deceased.
    "In an action brought by an executor to recover rent of a person who had 'been a number of years in possession, parol evidence of the declarations of the testator that he was to pay no rent, are admissible.
    This was a certiorari directed to the Court of Common Pleas of the county of Somerset, to remove the judgment and proceedings on an appeal from the judgment of a justice wherein Frederick Cox was the appellant and Abraham D. Baird, executor of Nicholas Dubois, was the appellee. Baird recovered a judgment against Cox before the justice upon the following state of demand.
    “ The plaintiff demands of the defendant the sum of one hundred dollars for this, to wit: That whereas the said ■defendant on the first day of May, 1826, was indebted to the .said plaintiff as executor as aforesaid in the sum of one hundred dollars for the use and occupation of a certain messuage with the appurtenances, of the said Nicholas Dubois in his lifetime, situate in the village of Somerville and county .aforesaid by the said defendant and at his special instance and request, and by the sufferance and permission of the .said Nicholas in his lifetime and by the sufferance and permission of the said plaintiff as executor as aforesaid after the death of the said Nicholas, for a long time before then elapsed, had held, used, occupied and enjoyed, and being so indebted he the said defendant in consideration thereof after-wards, to wit: on the day and year aforesaid, promised the said plaintiff as executor as aforesaid, to pay him the said *106] sum of money whenever afterwards he should *be requested. And whereas also afterwards, to wit: on the day and year last aforesaid, in consideration that the said Nicholas Dubois at the like instance and request of the said defendant, had before that time permitted the said defendaiil, to have, hold, use, occupy and enjoy a certain other messuage of the said Nicholas Dubois, in his lifetime, situate at Somerville aforesaid and at present in the possession of said defendant and that the said defendant had according to the last mentioned sufferance and permission holden, used, occupied and enjoyed the same for along space of time then elapsed, to wit: from the 1st day of May, 1825, to the 1st day of May, 1826, he the said defendant undertook and promised to pay and allow for the same as much money as the use and occupation of the said messuage with the appurtenances, were reasonably worth, and the .said plaintiff avers, that the same was reasonably worth the further sum of one hundred dollars of which said defendant had notice. Which said several sums of money above mentioned after the death of the said Nicholas Dubois, the said defendant promised and agreed to pay to the said plaintiff as executor as aforesaid, whenever he should be thereunto requested. Yet the said defendant hath not although requested so to do, paid the said sums of money or either or any part thereof to the said Nicholas in his lifetime or to the said plaintiff as executor as aforesaid since the death of the said Nicholas, but hath hitherto wholly refused and still doth refuse so to do, by means whereof and by force of the statute in such case made and provided, an action hath accrued to the said plaintiff as executor as aforesaid to demand and have of and from the said defendant the said sum of one hundred dollars above demanded, for which he brings suit.”
    From this judgment, Oox appealed and upon the trial of the appeal the following state of the case was agreed upon.
    This cause carne on to bo fried before the Court of Common Pleas in the term of June, 1828.
    The plaintiff having opened his cause by his counsel, the defendant, by his counsel, moved the court to non-suit the plaintiff, upon two grounds.
    
      1st. That the action was misconceived, being debt instead of case. And
    2d. Because of a misjoinder of action. The declaration *107] containing *two counts, both including the rent which accrued, as well before as after the death of the testator.
    The court, after hearing the arguments of counsel for both parties, being equally divided, the defendant took nothing by his motion.
    The defendant offered Mrs. Sarah Stryker as a witness to prove that after the defendant had occupied the premises,, and while he was in possession, and in the life time of one Mary Cook, the testator stated to her at different times, that the defendant paid and was to pay the rent for the-premises to the said Mary Cook, to wit, that he paid her a certain annual amount due her as her right of dower, in lands bought by testator, formerly her husband’s. That the testator stated at the same time to the witness, that the-defendant had paid said amount to the said Mary, annually, for him as her right of dower, and which was more than the-yearly rent of the premises occupied by defendant.
    The defendant offered further to prove by Mary Ammerman ■ and Mrs. Sarah Stryker, that the testator stated to ■ each of them repeatedly, while the defendant occupied the premises, that he. had purchased the premises, for the-defendant to live on .as his own, lree from any other charge, than to pay the said Mary Cook her right' of dower; that the defendant was to repair and improve the premises; that he had repaired and improved the same by building a kitchen, milk room, barn, and an addition to the blacksmith’s shop; and' the testator stated to the witness at the same time, that after purchasing and paying for the premises in question he had a surplus of money in his hands of' the defendant. ■
    The defendant further offered in evidence a certified copy of the last will and testament of the said Nicholas Dubois,, dec., under the hand and seal of office of John Erelinghuysen, esq., surrogate of the county of Somerset.
    
      Also a lease between the testator and defendant for the same premises, dated the day of A. D.
    sent up with the papers by the justice; proving the same by the subscribing wfitness, and also proving by the same witness that said lease was produced and proved before the justice in the court below.
    The plaintiff by bis counsel objected to the foregoing testimony, *as severally offered; and the court after [*108 hearing arguments, overruled the testimony.
    The defendant offered a certified copy of the inventory of the deceased as evidence which was read.
    The cause having been submitted, the court reversed the judgment of the justice below, and rendered judgment for the plaintiff for the sum of sixty-seven dollars and thirtj'-five cents.
    
      Hartwell, for the plaintiff in certiorari,
    relied upon two reasons for the reversal of this judgment.
    First. Because of a misjoinder of action, in this, that the plaintiff has included in his state of demand two counts; the first for rent which accrued in the life time of the testator; the second for rent which accrued after his death; the samo not being assets, if recovered, but belonging to the heir.
    Second. Because the court admitted improper evidence on the part of the plaintiff below, and rejected proper evidence offered by the defendant below.
    In support of the first reason, he said, the declaration contains two counts, claiming the rent that accrued as well after as before the death of the testator. Eent becoming due after the death of the testator goes to the heir, and not to the executor; Jacob L. D. Land, and Ten. 99, 100; Sacheverel v. Frogart, 2 Levinz, 13. The heir in law may, in right of his ancestor, maintain an action of debt for rent which accrued after the death of ancestor; for the rent is incident to the lands and part of the reversion.
    
      A plaintiff cannot join in the same action a demand as executor with another in his own right. 1 T. R. 489; 1 Chit. Plead. 202. Lord Ellenborough expressed a wish that the rule laid down in Bull v. Palmer, had been abided by, viz: “That where the money recovered would-be assets, the executor may declare for it in his representative character 1 Chit. Plead. 203; 1 Esp. Dig. 261; 6 East, 405. Here the money in the first count would go to the executor, and in the second to the heir.
    In support of the second reason, viz., that the Court of Common Pleas overruled proper testimony offered by the defendant, he said, the action is brought upon a parol demise, and the. defendant offered to shew not only payment, but the terms on which the property was occupied. *109] The plaintiff shewed no contract *either written or parol; the defendant offered to shew a contract.
    Our statute of frauds, Rev. Laws 151, sec. 10, is similar to the 1st section of the statute of 29, Gar; II. c. 3.
    Where there is a parol agreement for a lease for years, &c., although by the statute of frauds the agreement be void as to the duration of the lease, it governs the terms on which the tenancy subsists in other respects ; 3 Stark. 1012, 1015, 10 Mass. Pep. 303.
    Even in the case of a written contract, parol evidence is admissible, where it does not vary the terms of the original contract or agreement, but shews that it has been discharged ; 2 Stark. 1002; 1 Phil. Evi. 444, $c.; Comyn on Con. 80, 81.
    The court also erred in rejecting the will; 1 Penn. 35, Ben ex dem. Snedeker v. Allen. This case proves that a transcript of a will may be'read in evidence even without the proofs.
    The court rejected the lease which would have proved that there was a contract, and that the rent reserved was $126, and ousted the justice of jurisdiction.
    Where no new contract or lease is proved, the law presumes a renewal of the original agreement. 1 B. ¿f E. 164.
    
      
      Vroom, contra.
   Bv tiie Court.

This was an action for use and occupation. On the trial, the plaintiff proved the occupation of the defendant, and the annual value; and rested on the presumption of law, that, as executor, he was entitled to recover. The defendant offered to prove that the testator had declared he was to pay no rent; and to prove also, the reason why he was to pay no rent. This evidence of the Court of Common Pleas overruled, ill our opinion, improperly.

Judgment reversed.  