
    
      D. Wilson v. J. Douglas.
    
    No matter how good the title of the lessor, if, at the time of the demise to the plaintiff, die defendant occupied a part of the land, and afterwards continued to do so, the plaintiff’s lease could not give him such a constructive possession of the whole tract as to enable him to maintain trespass against the defendant.
    The lessor of land is an incompetent witness to prove his title so as to enable his tenant to recover on his own demise, in an action of trespass.
    
      Before Mr. Justice Richardson, at Abbeville, Fall Term, 1847.
    The Presiding Judge. This was an action of trespass quare clausum fregit.
    
    The plaintiff proved a lease from Kennedy, dated 1844, for 55 acres of land, and was put in possession of the house and enclosure of two acres, and constructively, of course, in possession of the whole. Much evidence was adduced to prove Kennedy the true owner of the land so rented to plaintiff. But, for the purpose of this appeal, his title may be assumed, as it was by me at the trial — in charging the jury.
    As to the facts proved, there was no doubt that defendant held two small pieces of land within the land leased to plaintiff, and within Kennedy’s lines, called Mullin’s Branch, and the Yellow Field. But his defence was, that he had taken possession of these pieces before the plaintiff leased the land, and held them ever since. The case was therefore reduced to this question: Could the plaintiff (not Kennedy) recover under his constructive possession of the whole, against the actual prior occupancy of the two small pieces by defendant, provided defendant really had such prior occupancy of the two small pieces, which depended upon the evidence 1 As several of the plaintiff’s grounds of appeal indicate the counsel’s views of the plaintiff’s case and its legal merits, different from my own, I report the evidence generally, to wit:
    
      Shillito, Surveyor — Plaintiff is the tenant of Kennedy, and lives in the house with 2 acres enclosed (no trespass thereon). The trespass is on the Yellow Field and at Mullin’s Branch - — (see plat) — locates Kennedy’s lands to contain the alleged trespasses (see the plat). Defendant lives at B — . Record and recovery, J. Douglas v. Kennedy — given in evidence; grant to J. Kennedy for 25 acres, 26th June, 1845; covers the slip of vacant land; witness sees no difference in the field (yellow field). The old grant to J. Rutledge in ’74, covers tíre 25 acres and the field, but not the trespass at Mullin’s Branch of J acre; this is fenced.
    
      J. H. Foster — Proves lease to plaintiff, dated 3d February, 1844.
    
      Shillito, again — Made the plat of fifty acres of Sims to Kennedy.
    
      Foster, again — The trespass at Mullin’s Branch is in defendant’s field, which part was cleared about ’40 or ’41. The field is mostly old; defendant has held it since about ’40 or ’41; that is, the new part.
    
      Is. Lesslie — Thinks ^ acre cleared on the Mullin’s Branch in Douglas’s fence, and over the line.
    
      Isaac Kennedy — the lessor, offered to prove a deed from W. Sims to himself, and -to show the fixed lines between himself and the defendant, according to the former recovery . — held incompetent.
    
      Foster, again — Shanks & Shanks, the witnesses to the' deed, are gone off; but it is Sims’s hand-writing, the lessor,, and the magistrate’s too.
    
      Shillito, again — The Rutledge grant covers the new grant.
    $. Abney — teased the 50 acres of Kennedy, and cleared the Yellow Field partly. Witness cut down the piece on Mullin’s Branch; was there in ’39 to ’44; did not fence the little field, but Douglas fenced it.
    
      Foster, again — Old Mr. Foster had the 50 acres long before ; 40 or 50 years ago.
    
      Shillito, again — Defendant said he had worked the field in ’44, and would be there to-morrow again; plaintiff had then leased it.
    
      S. Dean — In ’43 witness rented a part of the Yellow Field of defendant, and tilled it; L. Hariss then rented it in ’44 to the extent of his line across the field, and the fence is on the line; Abney was in possession of the part beyond the line; that was all he claimed as tenant to Kennedy.
    
      
      S. Abney — Witness rented a part of I. Kennedy, and Dean tended it with witness. Witness rented defendant’s part, i. e. of defendant; in ’42, defendant claimed about an acre of the field; the fence is on the line; defendant claimed to it; there are marked trees along the fence.
    
      iShillito, again — The Yellow Field is 1 acre, 3 roods, and 14 perches.
    I charged the jury, that the title of Kennedy to the land might be assumed as not disputed; that when he put Wilson in possession of the house and enclosure, Wilson was, by legal construction, put in possession of the whole 55 acres, and that he might sue any subsequent trespasser on any part of the land leased to him, but that such constructive possession could not extend to a part actually held and occupied by the defendant before the lease, and continued ever since. Such prior and actual occupancy was paramount to and would exclude the mere constructive occupancy of Wilson, no matter how good the title of the lessor Kennedy to the identical land so holden by the defendant. This was the law of the case, and the jury should decide for the plaintiff or defendant according to the fact of the defendant’s actual and prior occupancy, or his mere subsequent occupancy — which latter, but not the former, would render him liable to the plaintiff as a trespasser.
    This question, whether the defendant’s occupancy had commenced before or after the plaintiff’s lease, was left for the jury alone to decide.
    The jury found for the defendant — -plaintiff appeals, and I have to remark that I excluded the evidence of Kennedy, as before stated, which gives rise to the first ground of appeal. Upon the 2d and 3d grounds, the plaintiff’s counsel .warmly urged upon the jury that the case should be decided by’ the right of a freehold in the lessor Kennedy, as proved by the verdict in Douglas v. Kennedy and Abney, for a mere trespass. The line then agreed upon by surveyors, (see this 2d ground) T said, had no essential bearing on the true question of this case, as just stated in my charge. The case did not turn upon the question whether Douglas or Kennedy had the freehold of the land, but upon whether the plaintiff’s pos-' session had been trespassed upon by defendant.
    The plaintiff appealed from the verdict of the jury, and moved the Court of Appeals for a new trial, on the following grounds:
    1st. Because his Honor erred in ruling that the lessor was an incompetent witness to prove the trespass in this case.
    
      
      2. Because his Honor erred in holding, and so charging the jury, that the record in the case of John Douglas (this defendant) v. Isaac Kennedy (this plaintiff’s lessor) and Samuel Abney, which was tried in 1841, as explained by the plats which were in evidence, and the testimony of A. W. Shil-lito, one of the surveyors in both cases, in reference to a line run in the former case, and agreed upon by both the surveyors as the dividing line between the lands of the plaintiff’s lessor and the defendant, had no bearing whatever on this issue. Whereas it is submitted, that that line being thus established, the defendant, as was proved, going over that line on the plaintiff’s side, who was then in constructive possession of the Mullin Branch land, and in actual possession of the Yellow Field, committed a trespass for which this action lies, and his Honor should have so charged the jury.
    3. Because his Honor erred in charging the jury that neither the plaintiff’s nor the defendant’s paper title was material to the issue.
    4. Because his Honor erred in saying to the jury, in almost so many words, that no trespass had been proved on the defendant, on either the Mullin Branch land, or the Yellow Field; whereas, this being a question of fact, should have been left to the jury.
    5. Because his Honor held, and so charged the jury, that this action would not lie against one in actual occupation of land, by one who was in prior constructive possession.
    6. Because the verdict was contrary to the law and the evidence.
    Jones, for the motion.
    Perrin, contra.
    
   O’Neall, J.

delivered the opinion of the Court.

The first ground of appeal cannot be maintained. For although it is true, that if the grantor or lessor have no interest in the suit, he may be examined touching any fact in the case, yet here, the lessor was offered to prove his own title, so as to enable his tenant to recover on his own demise. This was in fact and in law to testify in his own case. He was therefore clearly incompetent.

The 2d ground presents no difficulty when explained. The record of the former recovery was received in evidence. The presiding Judge held, and I think very correctly, that it could have no effect on this suit. For if it were conceded that by it Kennedy was the owner of the locus in quo, still the plaintiff could not recover. For at the time of the demise to the plaintiff the defendant was in possession, and the plaintiff’s lease 'Could not give him such a constructive possession of •land in the possession of another as would enable him to maintain trespass. This view of the case, sustained as it is by Amick v. Frazier, Dudley, 340, precluded the defence of title on which the plaintiff relied, and the verdict for the defendant, under the very proper instructions of the Judge below, was altogether right. The motion is dismissed.

Richardson, J. Evans, J. Wardlaw, J. Frost, J. and Withers, J. concurred.

Motion dismissed.  