
    
      WALSH vs. COLLINS.
    iidentaí, and*'1 accessary to a judgment, and the jury cannot allow them to a defendant against whom a recovery is had.
    The party, from whom land is recovered, ought to be charged for the use andoccupation, from the day of the legal demand.
    Appeal from the court of the third district.
    This suit was instituted to recover a tract Qf land, in the possession of the defendant, x 7 and $40 for uge an(J occupation. r
    The defendant pleaded the general issue. ° title in himself, and prescription. 1 1.
    
    There was a verdict and judgment in favor v 0 of the plaintiff, for one half of the land; hut he was condemned to pay costs. He appealed.
    East’n District.
    
      May, 1822.
    
      Watts, for the plaintiff
    1st. The verdict is contrary to evidence — the defendant’s acquiescence in plaintiff’s title being fully proved, so as to destroy defendant’s equitable title.
    2d. It is contrary to law in ordering plaintiff to pay costs.
    3d. The verdict is defective in not adjudicating on the rent claimed by plaintiff
    I. it is evident from the probate sale of Adams’ estate, that the whole tract was intended to be, and was sold. The description in the process verbal of that sale includes the whole. The testimony of Wheeler proves, that in the lifetime of Adams, and when Adams contracted to sell Wheeler this very land, the defendant acknowleged the right in the whole land to have passed to Adams, under the sheriff’s sale. The defendant agreed to pay Wheeler $50 rent per an-num, for the land, and did pay part of that rent according to Wheeler’s testimony.
    Creswell’s testimony is, that defendant promised to pay plaintiff $40 per ann. rent, for 1 J L the land, and this after the probate sale.
    Austin’s testimony is clear and positive, that on returning from the probate sale, the defendant admitted that he had no ownership in the land — that he expected plaintiff would let him have, in other words, sell him half the land.
    Austin heard nothing of the claim at the sale, and he is a brother-in-law of the defendant. Defendant did not state his claim in his conversation with Austin, but acquiesced in the sale of the whole to the plaintiff. Austin states it as the general impression, thaUif defendant had bid for the land, plaintiff would not have bid against him; much less would plaintiff have bid at all, if he had heard of any claim of defendant’s to the land.
    It has been decided in equity, although I cannot lay my finger on the decision at present, that a party who, with his eyes open, stands by and permits his property to be sold, without claim or opposition, is accessary to the fraud, error or deception; is consenting to the sale, and never afterwards can impeach it; and surely no principle is more equitable. This land originally sold, at a long credit, for $600 — when worn out, is sold at sheriff’s sale . to Adams tor $300 — contracted to be sold by Adams to Wheeler for $350. Is it to be believed that Walsh would give $400 for half of it, or for a disputed title to the whole? The defendant consented to become tenant to Wheeler, and pays him rent — acquiesced in the sale made by the probate court to the plaintiff, and attorns to him as his landlord, by agreeing to pay him rent. The conclusion is, that defendant had either sold his right to his father, Robert Collins, against whom the execution sale was originally, or permitted the whole to be sold to pay his father’s debt. At all events, his silence and acquiescence was such as to estop him from claiming any part of the land5 and to extinguish his title to all of it. The jury ought, on the evidence, to have found a verdict for the plaintiff for the whole, and what they ought to have done, this court will do.
    II. That part of the verdict which sentences plaintiff to pay costs, is clearly illegal.
    Plaintiff demands "a piece of land by description. Defendant denies his right to all of it. If, therefore, plaintiff recovers any part of the land, he is entitled to costs.
    
      1 he verdict rives him one half of the land. . therefore he is entitled to costs.
    If defendant wanted to avoid this, he ought ^o have plead specially, admitted plaintiff’s right to one half of the land, and expressed himself ready to make a partition ; or if an amicable demand was made, on that demand he ought to have expressed his willingness to divide, or if no demand was made, he might have pleaded as above, and the amicable demand not being proved, he would have recovered costs.
    In dower, at common law, if the defendant pleads tons temps prist, viz. ready to assign dower, the plaintiff recovers no costs, and defendant pays none, so here defendant might have admitted plaintiff’s right to half the land, and plead “ ready to divide,” and costs could not equitably or legally have been awarded against him. Humphrey vs. Phinney, 2 Johnson, 484.
    In suits in chancery for land, if the complainant recovers part of the land in controversy, he should, in general, recover full costs. Hardin's Rep. 1.
    If a plaintiff sues for $5000, and a jury were to bring a verdict for plaintiff for $3,000, and add to it that defendant did not owe plaintiff the other $2,000, would not the latter part of . it be surplusage, and would not plaintiff be entitled to costs, and can the jury give them r i • } irom him.J
    So here the verdict of the jury is exclusively for the plaintiff — the latter half is sur-plusage, and merely nugatory. “ We, the jury, find for the plaintiff, one half of the land in question, and for the defendant the other:” would not the title to the whole of the land have been equally res judicata, if the latter member of this verdict had never existed.
    The rights of plaintiff and defendant would have been the same as they are now, if the jury had found simply a verdict for the plaintiff for an undivided half of the land. In Bolton fr al. vs. Harrod ⅝* al. 10 Martin 115, and Nu-gent vs. Delhomme, 2 Martin, 307, the court say, costs are incident to the judgment; of course they go to the party who gains the judgment, and who is that? Surely, the plaintiff; for he gains by it one half of that land of which the defendant denied him any part. The defendant gains nothing by the verdict — by it he loses half of what he claimed, and was in possession of. A jury have no right nor power to give costs — they are a part of the judgment of the court on the verdict. If the court affirm this part of the verdict and mdgment, they f , , • will decide contrary to the above decision, for wjjj gjve C0S(S to a party in whose favor no judgment was rendered.
    III. The plaintiff claims rent for the land— $40 per ann. for the whole, having supposed himself owner of the whole. The verdict finds that plaintiff is owner of one half.
    Plaintiff is, therefore, entitled at least to $20 per ann. for his half. It appears in evidence that defendant had agreed to give $50 per an-num to Wheeler for the land ; and also from Creswell’s testimony, that $40 per ann. was a fair rent for the place.
    Plaintiff became owner in January, 1817— he is, therefore, entitled to rent up to April, 1820, viz: 3-3 c. $20 per annum, is $65. The jury were bound to give a verdict for the rent, as it was demanded in the petition. If the court will not take upon themselves to say what the rent ought to be, they must send the cause back to have it ascertained by a jury. The court may decide on the amount of the rent. Had the jury given too much or too little, this court could have corrected their verdict, and the facts being all before the court, it can decide and draw the proper con-elusion, and give a final judgment. It was done • r> r r\ 1 -Ji/r • so in roeyjarre vs. L/elor, 7 Martin, 3.
    I apprehend that I have made it clearly appear to the court that the defendant, by his acquiescence, his conduct and actions, has recognised the plaintiff’s title, and is estopped from disputing it; and the verdict is contrary to evidence, in finding only half the land for the plaintiff; and that on the evidence, plaintiff is entitled to a judgment for the w hole.
    That on the second point, so much of the verdict as goes to make plaintiff pay costs, is illegal, and that the verdict ought to have given plaintiff costs against the defendant, inasmuch as thejudgment is for the plaintiff
    And that on the third point, the cause must be sent back for the jury to find a verdict as to the rent, or the court may decide on the evidence before them.
    Lobdel, for the defendant.
    The plaintiff has no right to a new trial, or a decree of this court in his favor. 1st. Because, from the testimony, the defendant is the owner of the two hundred acres of land, by an equitable title. 2d. Because, the defendant has acquired a legal title, by prescription. 3d. Because, the lessor of the plaintiff, never had a ... . 1 , c , right in more than one hundred acres ot the land. 4th. Because the confessions or laches ¿efendant, if any, did not take away from him a vested right.
    I. The agreement entered into by Thomas Pollock, Robert Collins and Jacob Collins, states that Thomas Pollock is to give Robert Collins and Jacob Collins a bona fide deed for the two hundred acres of land, on the condition of the Collins1 paying to him, in two payments, the sum of six hundred dollars, which was to be the full consideration therefor. 2d. The deposition of Mrs, Jane Percy, states, that she knows an agreement was made with Thomas Pollock, by Robert Collins, and Jacob Collins, for the two hundred acres of land, for which they were to pay Pollock, in the years 1809 and 1810. That captain Percy made the payment for Jacob Collins, to Pollock; that Robert Collins failed in making his payment, and that in consequence of such failure, Jacob Collins paid the residue, at the request of Robert Collins and Thomas Pollock; and that Robert Collins gave up his right to the agreement; and also agreed that Jacob Collins, should receive the deed in his own name, and for his own benefit; in consequence of such payment, that Jacob Collins, the appellee, then lived on the land, and now lives on it. There is no testimony on the record, which contradicts the agreement, or the deposition of Mrs. Jane Percy. But the appellant’s counsel excepted to their being received as evidence. The agreement being the evidence of the original equitable title from Thomas Pollock, from whom both the appellant and the appellee claim the land, was correctly received by the judge, to shew what interest they possessed, having the highest evidence the nature of the case would admit.
    The deposition of Mrs. Percy, was taken by consent, and all waver of objection to the time, place, and manner; and as the appellant’s counsel saw the interrogatories, and consented to propounding them, every direct answer to them, and the deposition itself, without any alteration, must be received; her personal appearance was expressly dispensed with— consent cures defect.
    Although the sheriff’s deed, and the extract of the process verbal, each express the conveyance of the two hundred acres of land, yet they derive their efficacy, if any, from Robert Collins, who, it seems, from the testi- . , ,, . . monj, parted with all the interest he possess-e<^ *n or'g*nal agreement, on failure of his covenants, to Jacob Collins, the appellee.— On an examination of the testimony, which has any bearing on this point, it clearly appears that the appellee has acquired an equitable title to all the land, by the subsequent parol agreement of all the parties.
    Parol evidence may be given to extend a written contract. 2 Day’s Cases, 137, 3 Johns. Rep. 528.
    Where a written agreement has been varied by parol, and there has been such a part performance of the parol variation, as would have procured it to be specifically executed, provided it had formed a part of the original agreement, the party will be admitted to give evidence of such subsequent unwritten variation. Philip's Evidence, 457.
    It is a settled rule, that if a party sets up part performance, to take a parol agreement out of the statute of frauds, he must shew acts, unequivocally refering to, and resulting from that agreement, such as a party would not have done, unless on account of that very agreement, and with a direct view to its per-formalice, and the agreement set up must ap- ... pear to be the same, with the one partly performed — there must be no equivocation or uncertainty in the case. 1 Johns. Ch. Rep. 131, 149 and 274, 15 Mass. Rep. 85, 3 Martin’s Rep. 486. A debtor can no longer claim the benefit of the term of time, after he has failed performance; extract Code, 876, art. 88. An obligation insólido is not presumed, it must be expressly stipulated. Civil Code, 278, art. 102.
    If. It appears from the deposition of Mrs. Percy, and other witnesses, that the appellee lived on the land previous to the contract or agreement, and has resided there ever since, even to this day. The first purchase was made in September, 1808, and the appellee has resided before that time, under the vendor, as tenant, and since that period, under a supposed good title, from Thomas Pollock, his vendor, making a period of rising ten years; although the vendor had not granted a deed of sale, yet he had promised to do so, on the fulfilment of the conditions — by this act the appellee acquired an equitable title to the land in question, and living on the land under such title, for the period often years, clearlv gives him a legal prescriptive title to it.
    The doctrine of prescription is laid down in the Civü Code, 478> arL 67<
    ill. The agreement, and the testimony of Mrs. Percy, and some others, shew, that Robert Collins had originally an equal interest in one half of the land, with Jacob Collins, the appellee, which was subject to the performance of a certain condition, each being bound for the performance of his half; the most favoured construction, therefore, of the testimony produced in the court below, cannot give Robert Collins an original interest in more than one hundred acres of the land; the same testimony shews that Robert Collins did not fulfil his condition, and that the same was paid by Jacob Collins, the appellee. If this payment by the appellee, gave him no greater interest in the land, than can be inferred from the original agreement, and Robert Collins, notwithstanding his parol agreement, was the legal owner of one hundred acres of the land, his representatives did not receive by their purchases at the sheriff and probate sales, a title to more than one hundred acres: and therefore, these deeds conveyed a greater quantity of land than the lessor possessed.— If the representative of Robert Collins, the appellant in this suit, and the plaintiff in the court below, insist upon the original bargain being paramount, and to receive the interest of his lessor in this land, let him pay to Jacob Collins, the appellee, the consideration paid to Pollock, for his half of the land, and the expenses and improvements thereon, since the possession of it by the appellee, and he might then, with some semblance of justice, make a judicial demand of one hundred acres, and truly state he was the representative of Robert Collins in so much. Jf he wishes equity, let him do equity. A purchaser at sheriff’s sale, gets no better title than the defendant had. 3 Martin, 622. A judicial sale does not transfer the property of a third person. 9 Martin, 489.
    The appellant will say he has a right to a reversal of the judgment of the court below, or to have the cause sent back to that court, in consequence of the jury awarding the costs against the appellant, where they found a verdict for him, for one hundred acres of the land ; to this I answer, that the appellant set up a claim to the two hundred acres of land . _ . . , , ¶ by virtue ot his purchase, and the acknow-legment of the appellee, and actually made a judicial demand for the two hundred acres, in which he failed in substantiating; he consequently failed in his action, and was justly chargeable with costs. Again, this claim to the two hundred acres, if good, was an equitable one, arising from the acknowlegments of the appellee, or his laches, and costs in all equitable suits, may be awarded against either party, or both, at discretion. An obligation in solido, is not presumed, it must be expressly stipulated. Civil Code, 278, art. 102.
    IV. Ail the testimony on the subject of confessions and laches, is the testimony of Cris-well, Amos Nebb and Wheeler.
    Criswell states, that the appellee acknow-leged himself the tenant of the appellant, and that he was to pay the appellant forty dollars per annum for the rent; he also swears, that the appellee was present at the probate sale, and did not forbid the sale of the land. Nebb and Wheeler state that the appellee confessed he would as soon the appellant would buy the land, as any other person, and did pay one of them part rent.
    
      In opposition to this testimony, is the testimony of John Stirling, Jesse Robertson, and others, who state that the appellee did forbid the sale of the land, by the probate, and that his work had gone to pay for it. He is also proved to be a very ignorant and illiterate man, easy to be imposed on.
    East
    On a close examination of the testimony of Creswell, it will be perceived, that he is very reluctant to give evidence against the interest of the appellant, whose overseer the witness then was, and apparently was very anxious for the success of the appellant, as he is contradicted in one material point by others, and can give no satisfactory reason, for the extraordinary ackriowlegments of the appellee— his testimony ought to be received with great caution — this contradiction and inconsistence will go far against the credit of the testimony, if not against the credibility.
    The testimony of Amos Nebb was illegally received, and therefore, is no testimony, as he was objected to. He was the son-in-law of Elijah Adams, deceased, to whose succession the land was said to belong. He was the curator ad bona, and tutor to the minor children of Adams — he was entitled to an usufructuary interest in his wife’s share of that succession. as one of the heirs of Adams, and therefore. had a direct interest in the proceeds of the }an¿ gold t0 appellant. Civil Code, 164. art. 86. Id. 204, art. 240. Id. 312, art. 248.
    Testimony of confessions, at best, is a suspicious kind of evidence, and the civil, as well as the common law, view them with great jealousy.
    The acknowlegments or confessions of a party, as title to real property, though they may be good to support tenantry, or to satisfy doubts in cases of possession, yet arc not to be received against written evidence of title. 5 Johns. Rep. 19.
    Declarations of a party to a sale or transfer, and which go to take away a valid right, are not admissible evidence. 5 Johns. Rep. 412.
    An obligation without a cause, or with a false or unlawful cause, can have no effect. Civil Code, 264. art. 31.
    There is no testimony of the laches of the appellee, as the only sale he is proved to be present, of this land, he expressly forbids, and asserts his title.
    From the testimony received, I think there can be no doubt of the correctness of the ver - diet of the first jury — at all events, that the second jury gave the appellee no more than his just rights; and if there should be doubts of tiie appellee’s title to the two hundred acres of land, there can be no grounds to disturb the verdict of the second jury, who were much better judges of the credibility of the testimony received from the witness, than this court can be.
   Mathews, J.

delivered the opinion of the court. The appellant insists on a reversal of the judgment of the court a quo, on three grounds. 1. Because the verdict is contrary to evidence. 2. Contrary to law in ordering plaintiff to pay costs. 3. It is defective in not adjudicating on the rent claimed.

The evidence in the case, traces the title to the disputed premises, back to one Pollock, who transferred his right to R. & J. Collins; the quantity of land being 200 acres. The whole tract was sold by the sheriff of Felici-ana, to satisfy a judgment against R. Collins alone; and under this last title, derived thro’ one Adams, who was the purchaser at sheriff’s sale, the plaintiff now claims. It is evident that the sale under execution, conveyed no more than the title ofR. Collins, which ....... r seems to have been to an undivided moiety oi the whole tract of 200 acres, and to this alone the appellant has acquired a title; and was at the institution of this suit, a joint tenant, or tenant in common with the defendant; unless by some act or acquiescence on the part of the latter, he has obtained a title to the whole tract of land. It is not pretended that the ap-pellee has done any act which amounts to a divestment of his right to one half of the property ; but that according to principles of equity and natural justice, he has forfeited his right and title by remaining silent, and not giving notice to the plaintiff of his claim, at the time the latter purchased the whole tract, at a public sale, of the succession of Adams, who held by sheriff’s deed, executed by virtue of a fieri facias against R. Collins alone, as already stated. What effect such conduct might have on a title to immovable property, according to our laws, it is useless, in the present case, to enquire; as from the testimony, the jury may well have negatived the fact of such having been the conduct of the defendant in this case.

The suit being for the whole tract of land. and the plaintiff having recovered one half, full costs ought to have been adjudged to him, unless the defendant had in his answer shewn a willingness to have the property divided, and partake in the manner provided for by law, in cases of tenancy in common. This he has not done, but denies all right in the plaintiff Decreeing costs, in the administration of justice, does not appertain to the province of jurors; they are incidental and accessary to the judgment of the court, fixed and ascertained by law, and ought generally to be adjudged in favor of suitors who are successful in their claims. We are, therefore, of opinion, that the verdict and judgment of the court below, are erroneous in adjudging costs to the defendant.

As to the rent claimed, it is shewn by testimony not contradicted, that the defendant agreed to pay forty dollars for one year's use of the whole plantation, if he should be obliged to pay rent. But according to the verdict and judgment of the court below, the plaintiff is a rightful proprietor of only one half. The rent ought, therefore, be reduced in proportion to his interest in the property, which will fix it at twenty dollars per annum A question then arises as to the time tor which rent ought to be paid. In the petition forty dollars a re claimed for one year, and also an indefinite sum as compensation for the use of the land. The annual value being established, it remains to ascertain the period from which it ought to commence ; and this, in our opinion, must be the date of the judicial demand, as the defendant may have been a possessor in good faith, until that time, of the whole tract of land. It appears by the record, that a citation was served on January 15,1818, and final judgment rendered in April, 1820; consequently the plaintiff is entitled to rent for the space of two years and three months, which amounts to forty-five dollars.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled ; and proceeding here to give such judgment as in our opinion ought thereto have been given; it is further ordered, adjudged and decreed, that the plaintiff and appellant do recover from the defendant one half of the tract of land in dispute, agreeably to the verdict of • lie jury, and the report of the experts who were appointed by order of the court below, ... to divide the land between the parties litigant, It is also further ordered, adjudged and decreed, that said plaintiff and appellant do recover the sum of forty-five dollars for rent of said plantation, and costs in both courts.  