
    Ross vs. Blair.
    Witness. Competency — 'practice—released surety for prosecution competent. Plaintiff's surety for the prosecution of his suit may be released, and examined aa a witness in the cause. So a guardian, who commences an action of ejects inent in the name of his wards, and gives his bonds for the prosecution of it? may be released when they come of age, and examined as a witness. Ante Craighead vs. The Bank.
    
    SAME. Samo. Release of dower by second husband makes him competent. If husband and wife join in a conveyance, releasing her dower in the land of her first husband to his heir, the second husband is a competent witness for the heir of the first husband, or the heirs of such heir, though they be the children of such second husband, in an ejectment brought by them to recover the land.
    Dower. Release of, to heirs out of possession, whether champeHous. If a widow, to whom dower has not been assigned, release her right to the heirs not in possession, such release seems not within 'the purview of the champerty act; for it does not invest the heirs with the right of entry, and can, perhaps, operate only by way of estoppel,
    SAME, Whether acknowledging such release after champerty act is champ er t oils ^ If such release was not duly acknowledged to pass the wife’s interest before the champerty act, her acknowledgment after its passage is not champertous, unless the transaction was so in its inception.
    GUARDIAN and Ward. Appointment of Guardian. The omission to state the names of wards in the record of the appointment of the guardian, if a defect, is remedied by the recital of their names in the guardian’s bond, entered of record immediately after the entry of the order of appointment.
    SAME. Leases of ward's land — omission of covenant against waste. The omission of a covenant against waste in a guardian’s lease, though the covenant be required by the statute of 1762, c 5, § 13, does not vitiate the lease, or absolve the tenants from the duties and liabilities of the relation.
    Landlord AND Tenant. When tenant's possession becomes adverse. To break the continuity of a landlord’s possession held by tenant, and arrest the operation of the statute of limitations founded on such possession, the possession of his tenants must have become adverse to him; and their possession becomes avderse, from the time their attornment to another landlord is known to the first.
    On the 10th of July, 1788, the state of North Carolina, by patent, No. 71, granted to Robert and Thomas King, 2500 acres of land, “at a place known by the name of The Banks, on both sides of the path that leads from the mouth of Holston to the ford of Wolf river.”
    There was also granted by patent, No. 484, dated July 29, 1793, to John Blair, a tract of 500 acres, on the main fork of Wolf river; and to Catherine Blair, by patent, No, 160, dated December 26, 1793, a tract of 1000 acres, also on the main fork of Wolf river.
    
      These tracts interfered with each other in the manner represented in the annexed diagram. The eastern boundary of the tract granted to Ross having been surveyed three times, is here represented, first by a back line, secondly by a dotted line, thirty-four poles east of the black one, and by another dotted line, twenty-seven poles east of the first dotted one.
    
      
    
    On the 25tb March, 1793, the Kings conveyed their tract to David Ross, of Virginia. In May of the same year John Blair died, leaving a widow, Sarah, and daughter, Cath-arine, the grantee of the 1000 acres, about two years old, and a son John, about twelve months old. Sarah Blair, the widow, was appointed guardian of her children, Catharine and John, by the county court of Grainger, on the 12th of December, 1797, and in the same month she intermarried with Joseph Cobb, and they had issue, Pharoah B., Frederick B., Elizabeth, afterwards married to Win. L. Atkinson, Mary, afterwards married to James Shields, Sarah, af-terwards married to William Murray and Bersheba.
    The order of Grainger county court, appointing Sarah Blair guardian, was in these words — “Sarah Blair, widow of John Blair, appointed guardian to the orphans of John Blair, deceased, and gave bond and security as the law directs, which bond is in the following words and figures; to wit.” The bond recited the names of the wards, but they were omitted in the order of appointment as appears above.
    In 1806, Joseph Cobb went to the lands granted as above mentioned to Catharine Blair and John Blair, and built a cabin on the 1000 acre tract, up to the eves logs and a small stable, and left them untenanted. In 1808, Catharine Blair, the grantee of that tract died. In June, 1809, Cobb again visited the lands, and rented the 1000 acre tract to James Watts, who was put in possession of the cabins Cobb had built; and to Samuel Sutherland the 500 acre tract. These leases were for seven years, and the tenants were to pay the taxes. But the leases seem not to have contained any covenant against waste as is required in leases granted by guardians of their wards’ lands by the act of 1762, c 5, § 13.
    The lease to Watts passed successively, it seems by assignments, into the hands of Chidick, Dale, and Crockett; in the possession of the last of whom it was, when John Blair came of age in 1814. In that year, and probably after his attornment to Ross, hereafter mentioned, Crockett ap* plied to Blair at bis residence, to renew the lease; and in 1815, Blair went in person to the land, and returned with a horse obtained from Crockett for the rent of it.
    In the spring of 1815, Isaac Davis visited the tract granted to the Kings, in the capacity of agent of Ross; and finding those who held under the leases made by Cobb in possession of the land, covered by the grant to the Kings, within the interference, he persuaded some of them at least, if not all, to attorn to Ross, by taking leases from him of the same premises.
    On the 24th of April, 1817, David Ross made and published his last will and testament, so as to pass lands in Tennessee, in which, after some specific devises, he gave the residue of his estate, real and personal, to his four children, Elizabeth Myers, wife of John Myers, Amanda A. Duffield, Frederick A. Ross and David Ross; and appointed Frederick A. Ross, Jacob Myers, and Thomas T. Bouldin his executors. Bouldin alone acted, and proved the will on the 6th of May, 1817.
    
      On the 28th of October, 1817, he commenced an action of ejectment on a demise in his own name, as executor of David Ross, in the Federal court at Nashville, notice of which was served on Blair’s tenants. At June Term, 1818, Blair was admitted to defend this action jointly with the tenants.
    On the 8th of September, 1818, Joseph Cobb and Sarah Cobb joined in a deed to convey to John Blair, junior, her dower in the 500 acres, granted to John Blair, senior. They acknowledged the execution of this deed in Grainger county court, at February Term, 1821; and a certificate thereof was endorsed thereon, to the effect that they had there acknowledged said conveyance to be their act in deed for the purposes therein mentioned, the said Sarah, wife of the said Joseph, being examined separate and apart from her husband, .as the law directs.” And the deed and probate were registered in Overton county on the 12th of March, 1822. Besides the above acknowledgment, there was also endorsed upon the deed an acknowledgment and privy examination, taken before the clerk of Grainger county court, in pursuance of the act of 1833, c 92; on the 5th of November, 1835, and the deed with all its endorsements was again registered in Fentress, on the 30th of December, 1836.
    After his admission to defend, but in the same year, Blair died, and his estate descended to the Cobbs, his half-brothers and sisters. They were made defendants at June Term, 1820, jointly with Crockett, the tenant; and on the 25th of July, the same year, the cause was submitted to a jury. His Honor Judge McNairy charged the jury, that if they believed David Ross was a citizen of Virginia, and that the lessor of the plaintiff was also a citizen of Virginia, and that neither of them had been in the state of Tennessee, during the continuance of the adverse possession of the defendants previous to the bringing of the action,'then they should find a verdict for the plaintiff; because eight and not seven years is the time allowed a plaintiff so circumstanced by law for commencing his action of ejectment. The jury found the defendants guilty, and the plaintiff had judgment, from which the defendants prayed a writ of error.
    To injoin this judgment Blair’s heirs now, namely on the 6th of May, 1823, filed a bill in the Federal Court at Nashville, which was pending till the 18th of September, 1832, when it was dismissed for want of equity; and the injunction which had been granted, was dissolved.
    In the mean time, namely, on the 26th of February, 1826, an action of ejectment was commenced in Fentress circuit court, at the instance of Joseph Cobb, against Ross’ tenants. The declaration contained four counts; — the first stated a demise of the 1000 acres in the name of John Blair; the second, a demise of the same in the name of Catharine Blair; the third, a demise of the same in the name of Catharine and John Blair jointly; the fourth, a demise in the name of Mary, Nancy, Sally, Pharoah and Frederick Cobb, infants under twenty-one years of age, by their guardian Joseph Cobb. At September Term, 1827, Frederick A. Ross, in whom the legal title to the 2500 acres was now vested by a conveyance from the heirs of David Ross, made on the 10th of April, 1820, was admitted to defend instead of the tenants, upon whom notice of the action had been served. At March Term, 1828, all the demises, except the fourth, were stricken out; and at September Term, 1831, the fourth count was amended by striking out the name of Joseph Cobb, guardian, and inserting in lieu thereof, the names of Pharoah B. Cobb, William L. Atkinson, and his wife Elizabeth, James Shields and his wife Mary, Frederick Cobb, Sarah Cobb and Ber-sheba Cobb, as the proper persons to prosecute the suit; it appearing to the court that they were the heirs of Blair, and for whom, while minors, Joseph Cobb had prosecuted the suit; that they had all come of age, and desired to be made parties instead of said Joseph Cobb, — they giving security to prosecute the suit, and for accrued and accruing cost. At March Term, 1832, the action was tried and the plaintiffs had a verdict and judgment, from which the defendants prayed an appeal to the supreme court. But the appeal was not prosecuted, and the parties afterwards agreed of record that the cause should abide the decision of the suit now to be mentioned, and that the same judgment should be entered in it as might be in that.
    On the 31st of January, 1833, this action of ejectment was commenced in Fentress circuit court, in which the de'" mise was laid in the name of Pharoah B. Cobb, Frederick B. Cobb, Bersheba Cobb, William L. Atkinson and his wife Elizabeth, James Shields and his wife Mary, and William Murray and his wife Sarah, and was of both the 1000 and the 500 acres. Notice of the action was served on the tenants, and Frederick A. Ross was admitted to defend in their stead at February Term, 1833. At August Term following, the venue was changed to White county, where, at June Term, 1838, the action came on to be tried, before his Honor Judge CaRütheks, and a jury of White.
    On the trial the parties made title by producing the patents above noticed; and as the title of Ross was the oldest, the controversy was, whether the lessors of the plaintiff, and their ancestors had had seven years possession of the interference before the commencement of the suit.
    To establish the affirmative, the plaintiffs introduced Joseph Cobb, and proposed to examine him as a witness. The defendant objected that he was incompetent from interest; and he produced the record of the ejectment, commenced by Cobb, in Fentress, in 1826, and insisted that as the demise in the fourth count was in his name, as guardian of his children, the heirs of John Blair, junior, and he had given security to prosecute the suit, he could not be examined. He also insisted that the deed of the 18th of September, 1818, purporting to convey Mrs. Cobb’s dower in the 500 acres to John Blair was champertous, and inoperative, and that Cobb was incompetent on that account. His Honor, however, admitted him, and he proved what is above stated, as having been done by him towards leasing the premises, as guardian of John Blair, in 1809.
    The defendant also insisted, that as the record of Grainger county did not give the names of the wards, the appointment of Mrs. Blair, afterwards Mrs. Cobb, as guardián of her children, Catharine and John Blair, was void; and consequently, that leases made by her, or under her authority, were not binding on the lessors, and did not create the relation of landlord and tenant. And he further insisted, that the leases made by Cobb were void, because they contained no covenants against waste.
    The testimony was very voluminous, and much of it irrelevant. It clearly established that Blair’s tenants were put in possession of the premises in 1809; that some of them, if not all, attorned to Ross, and took leases under him in 1815, and_ perhaps shortly afterwards took leases from Blair again; and upon this testimony the defendant lastly insisted, that the continuity of Blair’s possession had been broken, by the at-tornment of his tenants to Ross, though Blair, the landlord, was ignorant of that attornment.
    His Honor instructed the jury — 1. That if Cobb leased the land as guardian in right of his wife, or as agent for her to tenants, who took possession and held under the leases for seven years continuously before the ejectment in the Federal court was commenced by Ross, then the title of the plaintiffs was made good by the statute.
    2. That those who took possession under Watts stood in his place, although they might have been ignorant of Blair’s title, and their possession was Blair’s, unless they took as purchasers of an occupant right and held it absolutely inde-pendantly of any existing title.
    3. That the possession of those who held under Watts, or purchased his interest, could only extend to the boundaries of the improvement, if by their contract with him they only bought or leased to the extent of the improvement; and in that case, the Blair title could only be made good to the extent of the possession. But if by the terms of their contract, they took the interest which he had without any limitation as to boundary, their possession of part of the interference was possession of the whole.
    4. If Crockett and Sutherland were in under Blair, and took under Ross, aeting through his agent, Davis, before or after John Blair came of age, that did not of itself convert their possession into an adverse possession to Blair. It did not become adverse till Blair had notice of it, if it was after he came of age, or until he or his guardian one had notice of it, if before he came of age. And if as soon as it came to his knowledge, if it ever did so, or if before he had knowledge of it, the tenants instead of holding out an adverse character, took leases of him, the continuity of his possession was not broken.
    Dec. 6, 7, 8, 9.
    The jury found a verdict for the plaintiff; and the defendant’s motion for a new trial being refused, he appealed in error.
    James Campbell for the plaintiff in error
    said we insist that the appointment of Sarah Blair guardian of the orphans of John Blair deceased, without designating them by name is void. It has been decided thata judgment against them without designating them by name is void. The principle of that decision is precisely in conformity with what is contended by the counsel for the plaintiff in error. To appoint a person guardian for heirs without designating' them by name is void, because it is very often a matter of doubt and difficulty to ascertain who are the heirs. It is a subject matter of proof liable to be contested. The same difficulty will arise when the designation is by using the word orphans. Does this expression necessarily designate children is contradistinction from grand children, legitimate from illegitimate children? If then this appointment of Sarah Blair guardian of the orphans of John Blair be void, the tenants under John Blair, agreeably to the opinion in 9 Yer. 463, were not estopped from taking protection under Ross’s title in 1815.
    2. But supposing the leases made by Joseph Cobb agent of his wife in 1809 were valid leases made by the authority of the guardian, jet the leases taken by the tenants of Blair, under Davis as the agent of Ross in 1815, broke the continuity of Blair’s possession. It cannot be pretended that Blair had seven years continued possession of the land, when his tenants in 1815 or before the expiration of seven years attorned to Ross, or took leases under him. A tenant may by his own act convert his possession into a possession adverse to his landlord; Willison vs, Watkins, 3 Peters 44; Brad]¡ street vs. Huntingdon, 5 Peters 438; 2-Sch. & Lef. 624.
    It is no answer to this proposition to say a tenant is under an estoppel to dispute the title of his landlord. A tenant may be under an estoppel and yet his possession be adverse to that of his landlord. It is agreed on all hands, and the cases cited fully prove, that if a- tenant disclaims holding under the title of his landlord, or attorns to another, or purchases in an outstanding title, and gives notice to his landlord of such disclaimer, attornment or purchase, — of his intention to hold for himself — his possession from that moment becomes adverse to his landlord; and if the landlord, after such notice permit the tenant to remain on the land for seven years, the tenant’s title is perfected by the statute of limitations, and the landlord is forever barred. But supposing that the landlord in the case stated, does bring suit for the recovery of the land within the seven years — what is the consequence? The tenant is placed under an estoppel. He cannot dispute the title of his landlord or set up his own. He must surrender the the possession even though he has the superior title.
    A tenant in common who enters into possession of land, holds for himself and his co-tenant. The presumption of law is that his possession is not adverse to, but in conformity with the title of his co-tenant. His possession is of a fiduciary character, precisely like that of the possession of a tenant. So the cases i;i 3d & 5th Peters fully decide as well as the case in 5 Wheaton 417; 5 J. C. R. 388, and numerous other authorities. Yet a tenant in common can hold adversely to his co-tenant. If he does so, the statute of limitations will run in his favor from the time of his ousting his co-tenant, and settingup his adverse possession. 3 Dane’s Abr. c. 92, Art. 1 and the cases there cited, Jackson vs, Tibbits 9 Cowen’s Rep. 252.
    3. It was decided by this court, when this cause was before them at a previous term, that a tenant is under no estoppel to take a lease from another person than the one he holds under, when there is no mutuality of obligation. If the landlord be an infant or is under no obligation to keep the tenant in possession, the tenant is under no obligation to uphold the landlord’s title and hold under it. Joseph Cobb, supposing he acted as agent of the guardian, had no authority to make the leases mentioned in this record. In England a guardian in socage has a real interest in the land during the minority of the infant. Comyn’s Dig. 381.
    He can make his leases and bring suits for the lands of his ward in Iiis own name. He is entitled as a mattef of right to the possession of his ward’s land during his minority. Hence he may make a lease of the land of his ward during his minority. In this State we have no guardians in socage. Guardians are appointed here under the authority of our act of 1762, ch. 5. The guardian here is appointed by the county court, and is removeable whenever the interest of the ward shall require it to be done. He has no interest in the land. Whenever he is removed and a new guardian appointed, the successor is entitled to the possession of the lands of his ward precisely as his predecessor had it. The powers of the guardian are conferred altogether by the act of 1762, ch. 5, sections 3, II, 12, & 13. He has no other powers. Does this act give the power to a guardian to make leases, such as are here described to have been made by Cobb. Leases extending beyond the period when the ward would arrive of age, containing no provision against waste,— no reservation of rent, and imposing no obligation whatever upon the tenant except to pay the taxes? If then this contract made by the agent was without authority it is void. It imposed no obligation whatever upon the ward to uphold the tenant in his possession, and as there was no obligation incurred on the part of the landlord to the tenants — the tenants were under no estoppel to take leases and hold under Ross in 1815.
    Cook on the same side,
    said, the title of defendant being the oldest and best, the question is, has that title been barred by the statute of limitations?
    Take the testimony in the strongest point of view against Ross and allow Cobb to be a competent witness; and then the proof shows that Blair’s possession commenced in June 1809 when Cobb gave James Watts alease on the 1000 acre tract and Southerland a lease on the 500 acre tract for seven years.
    Supposing for the present this possession was continued, yet it appears that in the spring, March or April 1815 or 1816, Davis as the agent of Ross went upon the land and threatened to turn the tenants out, and they then took written leases under Ross’s title.
    These tenants then held for Ross until some time in the summer following, when they again took leasses under Blair’s title.
    Now the first question is, did the taking of leases under Ross’s title by Blairs tenants and the holding under Ross for a time, break the continuity of the possession?
    What did the transaction between Davis and Blair’s tenants amount to?
    It amounted to a disseizin. This will at once appear when we consider the nature of seizin and disseizin at common law.
    Before the use of letters all property in land passed by a solemn act of investiture. This was by an entry on the land and delivery of a twig or turf for the land.
    A disseizin was the entering upon and ouster of the tenant by a wrong doer and usurping his relation. This always implied a wrong, and always supposed the title in the tenant in possession; otherwise it would only amount to a dispossession or ejectment. Taylor vs. Horde, 1 Burr 107; Co. Lite 153, § 233, and note; 181, § 279, and note; Plowd 89; Angelí on Lim. 79; 2 Bac. Ab. 482; 5 Peters, 439, 440.
    Now in this case Davis entered upon the land, executed leases to the tenants and they agreed to hold under Ross. This is precisely the kind of acts that constitute a livery of seizin or feoffment at common law, where there is no adverse possession; and is precisely the definition of a disseizin or dispossession, when the land was before tenanted.
    But it may be argued that the tenants of Blair could not throw off their relation and hold adversely to Blair. It is true they could not rightfully constitute themselves tenants of Ross, and hold adversely to Blair; but it is not true that they could not in point of fact do so. If in fact they did so, then the transaction would amount either to a disseizin or dispossession. So far as to enable Blair to regain possession they would be his tenants. To show his title he would not be put to turn them out, nor could they show a better outstanding title in Ross or another. But because they could not rightfully do this it does not follow that they did not, in point of fact, hold adversely and for Ross. Adverse possession is always a question of intention, an operation of the mind connected with the possession, as forming the character thereof, and giving its true characteristic. If this were not so the landlord could never turn out his own tenant after the expiration of his lease, or where he denied the title of the landlord during the continuance of the lease.
    If this adverse holding by the lessee against his landlord continues for seven years the title is barred.
    If this be the case, of course the holding of the tenant cannot count for the landlord during the same time, and operate to make his title good by the statute of limitations.
    If that were so, then one possession and one holding would at the same time ripen two adversary titles, the one by an actual holding under it, and the other by a constructive holding under it.
    But if this holding could operate to ripen the original landlords title, then it could never bar that title by any length of possession; but would always operate to confirm and make it better, thereby in effect defeating the title under which the tenant in fact held.
    This view of the case shows, that a constructive tenancy cannot operate to confirm the title of the landlord, but there must be a bolding under the title in point of fact. Adverse possession is always a question of fact, 9 Johns Rep. 163; 5 Peters Rep. 402, 438 — 9, 440.
    If this be so, then the holding under Ross from the spring to the summer of 1816 broke the continuity of possession, and being within the seven years, there is no continued possession under Blair’s title giving it preference over the older and better title of Ross.
    But it may be said, that in the case of Bitfce’s Lessee vs. Harper, 6 Yerger, it is decided that the adverse possession of the tenant does not operate against his landlord until that landlord is informed of its adversary character. It is true that such a decision was made, and if taken in a proper latitude, it was rightly decided. But it does not follow, because the possession could not operate to defeat his title before he knew of its adversary character, that in the mean time it should operate to ripen, and make better his title. This would be a perfect non sequilur. It would make the character of the holding, depend on the landlord’s knowledge and not upon the quo animo with which the possession was in point of fact held. Could his knowing it make it adverse when it was not before? Would it be a holding for him while he was ignorant, and against him as soon as he was informed thereof? This is absurd.
    The truth is that by the decision in Duke vs. Harper an equitable construction is given to the act of limitations on acccount of the apparent hardship of the case; namely that the statute shall only run from the discovery of the adversary holding and not from its inception.
    Tlje holding is certainly of the same- character whether known to the landlord or not; that depends on the tenant, and not on the landlord.
    But if it were not so, yet the landlord must have known of the adversary character of the holding of his tenants. The proof shows he did; and this knowledge would make the adversary holding commence running against him, and if it ran against him for an instant the continuity of the possession is broken. But Judge Caruthers has also ingrafted another equitable exception upon the statute, to the effect that seven years continued possession shall not be required, but he shall be allowed such additional time as may be necessary to counteract the wrongful or negligent acts of the tenants.
    Suppose the tenants had gone from the land and left it unoccupied, would the time still run on until the landlord knew of it? He might not know of it for years.
    Suppose instead of holding under Davis they had given up the possession to him as Ross’s agent. Would the possession of Ross by his own agent operate to perfect the title of Blair. That will surely not be pretended. Yet it is precisely this case in principle. 9 Johnson, 1,63; 5 Wheaton 439, 440.
    2. It is proven that John Blair was an infant when the leases were made by Cobb as his guardian. They are not made pursuant to the statute 1762 c. 5 § 13. There is no provision against waste &e. This renders the lease void and not obligatory on the infant; and not being obligatory on him, it is not on the tenants, antkso they were not estopped to hold under Ross. Co. Litt. 352; Bac. Ab. 190; 9 Yerger, 469, Ross vs. Cobb; Cro. Eliz. 36, 37; Sbep. Touch 276; Rolls. Ab. 871; Cro. Eliz. 300.
    3. The act requires tbe lease to be made only until the infant come of age. Of course it would be void for the excess; and being so void, the tenants were not estopped to take leases under Ross, after Blair came of age in 1814. 6 Wend. 666: 4 Cora. Dig. 85; Co. Litt. 48.
    4. The appointment of Sarah Blair widow of John Blair guardian of the orphan children of John Blair, without naming who they were is void; and so the leases made by Cobb were void. It- is a judicial proceeding and must contain- reasonable certainty upon its face. The names of the parties must he given otherwise there is no certainty upon the record.
    In the year 1810, there was no tenant on the 1000 acre tract but Chidick; and he only leased the field and no more. After Chidick left there was not seven years before the action of ejectment in 1817. Therefore, in no event* can more than seven or eight acres be recovered.
    6‘. The court erred in permitting Cobb to give evidence. He and wife were entitled to a dower right in the 500 acres at the commencement of this suit. And their subsequent conveyance thereof with a view of becoming a witness is cham-pertous and contrary to the act of 1831, c. 66, § 3. The deed of the former before the privy examination was merely void; and when that took place, John Blair was dead and this suit was pending, and it appears from Cobbs deposition that the deed was made without consideration and merely for the purpose of becoming a witness. The deed then is ehamper-tous and contrary to the spirit of the act in question-.
    7. It is in proof that the original possession of the land was not-taken under Blair’s title. Nip-p settled' as an occupant on the 1000 acre tract in 1807, and improved it and sold his- improvements, and possession to Watts, Watts sold to Raines, Raines to Dale, and Dale to Crockett.
    Sutherland settled as an occupant in 1809, and in the summer of that year agreed to hold under Blair, and in the spring of 1815' or 1816 agreed to hold under Ross, and in that fall again agreed to hold under Blair.
    Where the original possession is not acquired from the landlord, the tenants are not estopped to claim under another title. The rule only applies where the original possession was obtained from the landlord. In that case, he is bound to place the landlord in the situation he was before by restoring him his possession. When Crockett and Southerland disclaimed to hold under Blair he was then placed in a statu quo. The tenants had nothing that they had acquired of him, but both parties stood precisely as they did before. 12 Wendell 105, Jackson vs. Leek', Jackson vs. Spear, 7 Wendell 401; 2 Johnson’s cases 353, Jackson vs. Curdon.
    
    February 8, 9.
    Laughlin and A. Cullom for the defendants in error.
    All questions of boundary, and that the plaintiffs in error, the defendants below, were in possession of the land in dispute when suit was brought, and that the present suit was brought immediately after the determination of the suits in the Federal court, being admitted, it may be most convenient to consider the questions now made in the cause in the order of time in which they arise.
    1. The legality of Sarah Blair’s appointment as guardian of John and Catherine Blair, the minor children of herself and her deceased husband, is questioned. The appointment was made by the proper court, in the proper county, and in conformity with the act of 1762, c. 5, § 5. The order of appointment and bond constitute but one record; and it is sufficiently certain on its face. In examining its validity, established rules of construction must be resorted to. A fundamental rule in the interpetration of all instruments, laws and records is, to construe them according to the sense of the times, terms, and intentions of the makers. Story’s Com. on Const. Ab , § 381; 3 Hay. Rep. 10, 58. The maxim, mala grammatica non vitiat, that neither false English nor bad Latin will destroy an instrument, is applicable to this record. 2 Bl. Com. 379. The bond is regular, as well as the appointment, though the manner of taking the bond has been changed by act of 1825, c. 45, § 1. By act of 1762, c. 5, guardians had express authority to lease lands and receive profits.
    The leases made by Davis, as pretended agent of David Ross, in 1816, and taken by Crockett and Sutherland, do not amount to a disseizin or ouster of Blair’s possession. The holding under the Blairs was under a special contract of lease, and the tenants could not attorn or disclaim the title, so as to operate as an ouster of Blair’s possession. Their possession, in law and in fact, continued- to be Blair’s, until the expiration of the term. They were estopped from doing so. Duke vs. Harper, 6 Yerg. 280, 285; 5 Tenn. Rep. 4; 5 Yerg. 379; Wheat. 535; 3 Peters, 47; 4 Hay. 158. The doctrine of estoppels, which are mutual, operates upon the case. Adams on Ej. 276; 4 Com. Dig. A. 2; Angelí on Lim. 105, 106. 107, 108.
    3. The possession of Blair from the spring of 1816, when it is pretended Sutherland and Crockett (Crockett holding under Watt’s lease,) took leases from Davis until the time, in the month of June in that year, when the seven years possession under Cobb’s lease, as acquiesced in and confirmed by John Blair after he came of age in 1814, was not a constructive possession, but an actual possession, and holding under Blair, and for Blair; from which Blair was not and could not be ousted by the acts of Davis and the tenants, of which he had no notice. Ross never considered that he had obtained possession by Davis’lease, nor did Crockett or Sutherland; and hence Ross commenced ejectment in the Federal Court in 1817, against Crockett, Sutherland, &c. as Blair’s tenants.
    4. Even if Blair had not confirmed Cobb’s lease, and bad barely acquiesced, the relation of landlord and tenant would have existed, as they were in under his title, and they would have held for him at will, or from year to year, and their possession would be his. 2 Caine’s Rep. 169; 1 John. Rep. 322; 4 Hay. Rep. 153; 5 Hay. Rep. 191; 13 John. Rep. 118, a.; 3 Johns. Rep. 223, 499.
    5. The cases cited by Anderson, erguendo, 6 Yerg. 283, in the case of Duke vs. Harper, in this court, prove that Crockett (holding under Watt’s lease,-) and Sutherland having entered into possession under the Blairs, thereby acknowledged their title, and can never be allowed to dispute it, or take under another, pending their lease, so as to defeat Blair’s title and possession. The distinction taken by plaintiffs in error, that the tenants could not attorn from Blair in law, but that they did so in fact,.so as to operate as a dispossession or ouster of Blair, cannot be maintained by any authority. The position is a metaphysical refinement, and has no adjudication to support it.
    6. The leases made by Cobb, as guardian, having been confirmed by Blair on coming of age, and the possession commenced under the leases continued, the statute had perfected the title. The effect of Blair’s acquiescence or ratification of the lease to Crockett, confirms the effect of the possession in his favor under the statute. 3 Gwillim’s Bac. Ab. 414, 415, Tit. Guardian, G. If the lease had been voidable after the infant came of age, or for want of authority in Cobb as guardian, or had been made by Blair in his minority, yet if he accepted rent, or acquiesced, or confirmed the lease, after coming of age, it is made good for the whole term, and such ratification operates upon it ab initio. 3 Salk. 196; 1 Lil. Ab. 55, cited in 2 Tomlin’s Law Diet. 182. The pretended lease of Davis was after John Blair came of age, and confirmed Cobb’s leases,
    7. There is believed to be a total absence of all proof of any authority in Davis as Ross’s agent. There must be proof of agency, especially where he is empowered to give a lease, or transfer any interest in lands. 2 Kent’s Com. 278. That the authority of agent must be shown and proved, by a party claiming benefit under his acts, is, however, conceived to have been settled by this court in the case of Floyd vs. Woods 4 Yerg. 165.
    8. Joseph Cobb was a competent witness. On the trial, the defendants below examined him on his voire dire, and he disclaimed all interest. The record shows his discharge as a party to the suit, and the giving of other security for all the costs accrued and to accrue in the cause. The deed of Cobb and wife to Blair, conveying her dower interest in the lands in dispute, is not champertous. The deed was made and bears date 8th September, 1818, and was acknowledged by Cobb, legally as to him, onr the 21st Feb. 1821. This suit was not commenced until 31st January, 1833; and the Act of Assembly of 1821, c. 66, was not passed until the 16th November, 1821. See Pamphlet Acts, p. 71. The deed was duly registered in Overton, where the land lay, and since in Fen“ tress, where it now lies. The deed has been again acknow-¡edged, certified and registered as to Mrs. Cobb. The deed had a legal, valid existence as a deed — and all acts done, after it was made, in confirmation of, and to give it effect, cannot be champertous, unless it was clearly so in its inception. 4 Kent’s Com 441; Jackson vs. Kitchum, 3 Johns. Rep. 479. A deed from husband and wife, without the privy examination of the wife, though void or voidable as to her, is good for some purposes, and is such color of title as will pro* tect the purchaser under the statute of limitations. Ferguson et. al. vs. Kennedy, Peck’s Rep. 321. The deed in this case; however, totally divests Cobb of all interest. There is no pretence that Mrs. Cobb ever had dower in the 6000 acre tract, granted to Catherine Blair. The third section of the champerty act of 1821, cannot, by any proper construction, be made to apply to the'situation of Joseph Cobb as a witness in this cause, for the reasons above stated; and because the provisions of this section do not relate to persons situated as Cobb is, who may offer to divest themselves of such contingent interest as he is supposed and presumed to have had in this cause. The deed is not a “pretext” within the meaning of the act — nor did he ever have a “joint interest” with the plaintiffs below, either within the letter or spirit of the act. The deed was not made to render Cobb competent as a witness. However this may be, the deed was made, and consummated by a legal acknowledgment by him, before the act was passed. John Blair, to whom the deed is made, died in 1818, we do not know in what month — and the deed was made, as is most clear, before his death, and is dated 8th September in that year. It must have the effect of passing any interest Cobb may have had to the heirs at law of John Blair, having that effect from its dale, and the perfecting of the conveyance afterwards by acknowledgment or probate, and registration, it is only a consummation of the title.
    If these leases count back to the time when the tenants actually settled on the land — and from the date from which they argeed to be Blair’s tenants — then the seven years possession of Blair is fully ended before the time in 1816, when Davis gave his leases, pretending to act for Ross. If tenants entered by parol permission of Cobb, and he confirmed them as tenants, by recognizing them as such, for the portion of the year 1809 which had passed before execution of written leases, then Blair’s title was perfected by the statute of limitations before Davis interfered. The leases might well be made to relate back to the time when the possession was actually and in fact taken by the tenants. In the trial below, these facts, upon evidence, were fairly and legitimately before the jury.
    If there be no material error in the charge of the court below, there will be no ground for reversing the judgment and granting a new trial, because the verdict may seem to be against evidence, where the testimony is irreconcilable and contradictory, unless the finding of the jury is clearly and manifestly against the weight of evidence. 5 Mass. Rep. 353. Even if the Judge misdirects the jury, if justice has been done, a court will not grant a new trial. 4 Day’s Rep. 42. The court will not reverse ihe judgment to grant a new trial where there has been evidence on both sides. 1 Caine’s Rep. 24; 2 Johns. Rep. 271. To authorise a new trial, the verdict must be so clearly against weight of evidence, as to afford a well founded reason to believe that injustice has been done. 1 Caine’s Rep. 162. A judgment will not be reversed to give a new trial for misdirection of the Judge, unless the misdirection went to the merits of the case, or clearly influenced the verdict. 2 Caine’s Rep. 85. A verdict of a jury in this court will not be set aside, unless there exists a great preponderance of evidence against it, and unless the preponderance is so manifest as to present a case of great rashness on the part of the jury. Grubb vs. McClatchy.) 3 Yer. Rep. 442; 4 Yerg. Rep. 149; Perry vs. Smith and May-field, 4 Yerg. Rep. 323; Sellars vs. Davis, 4 Yerg. Rep. 503; nor will a new trial be granted where there is strong proof on both sides. Wilson vs. Nations, 5 Yerg. Rep. 211. In this case there have been two concurring verdicts upon the same state of facts and testimony.
    The policy of our courts, founded upon the long chain of precedents from 1715, down to the recent adjudications under Brown’s quieting act of 1819, characterized throughout by ■ the most wise caution, has been to preserve and establish titles acquired under the several statutes of limitations. In this case, however, the court is urged to depart from this policy by the plaintiffs in error, and to become astute in searching for reasons to defeat the operation of the statute upon the subtle grounds of pure modern technicality.
   Reese, J.

delivered the opinion of the court.

Several questions have been discussed in this case. We will notice some of them.

1. Was Joseph Cobb a competent witness? The plaintiff in error insists that he was not, upon two grounds: first, because this suit having been brought in his name as guardian, the circuit court, upon his wards arriving at their majority, substituted their names for that of Cobb, and took a new bond for the prosecution of the suit, and to secure the costs of the suit, as well those previously incurred, as those which might be incurred, and released Cobb from all liability.

The power to do this is denied, in the argument, to the circuit court, and it is said Cobb is still liable for the costs incurred while he was a party, and therefore an incompetent witness. This court has settled the question against the objection, and in favor of the power of the circuit court, in the case of Craighead vs. The Bank

But, secondly, it is said that Cobb was an incompetent witness, because his wife, the mother of the lessors of the plaintiffs, would be entitled to dower in the 500 acre tract of land granted to the elder Blair, her first husband, and because the deed from Cobb and his wife, to John Blair, the younger, dated in 1818, and set out in the record, was as to the acknowledgment and examination of the wife in February 1821, before the passage of the act of 1821, ch. 66, commonly called the champerty act, not valid and effectual; and her acknowledgment and examination since that act is affected and rendered void by its purview.

To this we answer, 1. That the acknowledgment by Cobb himself, in February, 1821, was a good and valid transfer and release of all his interest in the dower during ’ns life, and forever. 2. We think that the subsequent acknowledgment of the deed by the wife, being in confirmation of an existing instrimtont, and intended to give it effect, should not he hold to ho affected by champerty, unless the transaction was so in its inception, 4 Kent’s Com. 441.

3. It may well be questioned whether, if a widow to whom dower has not been assigned, transfer, or release it to the heirs who are not in possession, the transaction comes within the purview, or violates the policy of the champerty act. For as we have said in the ca so of Guthrie and Wife vs. Owns, that the entire title before the assignment of dower, is in the heirs, ns the title of the widow to dower is inherent in and involved with that of the heirs; if they are barred, she is barred— if they recover the possession, they recover in their own name and for themselves, and her transfer to them would give no more title or capacity to sue; such transfer, perhaps, before assignment, operating only by way of estoppel. We are, therefore, of opinion, that Cobb was a competent witness.

2. It is contended that Sarah Blair, since Sarah Cobb was not duly appointed the guardian of John and Catherine Blair; the record of appointment only stating that she was appointed guardian of the minor children. We are not prepared to say that this alone would not be sufficient. The guardian bond, however, staler the names of her wards, and if there could be any doubt upon the other point, removes it.

3. It is said that the leases taken by Cobh are not in conformity with the statute which requires that the leases should stipulate against waste, and therefore that the lessors are not bound by them. We answer that these provisions of the statute are mandatory to the guardian, and their omission cannot absolve the tenant from the duties and liabilities of the relation into which he has entered.

4. It is strenuously, and. with much ingenious argument, contended that the circuit court erred in charging, that to break the continuity of the possession under Blair, the posses-session of his tenants must havo become adverse to him; and that to constitute such adverse possession, their attornment to Ross must have been known to their landlord, Blair.

This principle is distinctly determined by the court in the case of Duke vs. Harper, 6 Yer. Rep.

It is the very point upon which that case turned. And the principle of Duke vs. Harper, is drawn from and maintained by the case of Willison vs. Watkins, 3 Peters, 43; and the case of Peyton vs. Stith, 5 Peters.

This court has repeatedly sanctioned the case of Duke vs. Harper, particularly in. the case of Lane vs. Osment, 9 Yer. 89. And to contend that the continuity of the landlord’s possession, with reference to the statute of limitations, is broken by acts of the tenant, which do not amount to an adverse possession, from which the statute will begin to run the other way, is to rest upon a distinction too attenuated for the safe and practical adjustment of the rights of parties in a court of justice.

We are not aware that such a distinction has ever, in any case, received judicial sanction.

Upon the whole, the judgment must be affirmed. 
      
       See 9 Yerger, 463, where this case as reported as of December Term, 1836. The record, as reported in that book, did not show that Mrs. Cobb had been appointed by court guardian of the children. It appeared that Cobb had made the leases as guardian by nature of the heirs of John Blair,
     