
    James Simmons v. Samuel Parsons.
    Columbia,
    May, 1828.
    A party to a deed is not an incompetent witness to invalidate it in a suit between other persons: And his having pretended to authority to maA .1 the deed, is an objection to his credibility only.
    
      At the trial of an issue involving the title to lands, the defendant may give in evidence, the declarations and acknowledgments of a person under whom the plaintiff claims, that he went into possession as tenant of the defendant. Semble.
    
    After liberum, tenementum pleaded, the plaintiff cannot, upon his possession alone, maintain an action of trespass, guare clausum fregit, against the real owner of the land.
    Tried before Mr. Justice Gantt, at Laurens, Fall Term, 1827.'
    Trespass for breaking plaintiff’s close, and ploughing up a cotton-field; Pleas, general issue, and liberum tenementum. The plaintiff proved that one Littleton Parsons, being in possession of the land, had mortgaged it to James Hunter, who, subsequently, purchased the fee-simple at a sale made by order of Court to foreclose; and that James Hunter demised to plaintiff, who was in possession when the trespass was committed by defendant. The defendant gave in evidence the record of an action of trespass to try title to the same land in which he was defendant, and the said James Hunter plaintiff, and in which there had been a verdict for the defendant. The defendant then proved, that Littleton Parsons, whilst in possession of the land, had repeatedly acknowledged that he rented it from the defendant. Defendant also offered the testimony of Littleton Parsons, taken by commission, to prove that he never had any title to the land, and that his possession was as tenant to the defendant. His Honor, the presiding Judge, held, that Littleton Parsons was an incompetent witness to invalidate his own deed, and rejected the evidence.
    His Honor charged the Jury that Littleton Parsons’ declarations could not avail to invalidate the title made by him: And that even if the defendant were the real owner of the land, still the plaintiff might maintain this action for a trespass committed whilst he was in possession.
    The Jury found for the plaintiff:
    And the defendant now moved to set aside their verdict on the following grounds.
    
      1st. That Littleton Parsons evidence ought to have been re- . , 6 eeived.
    2d. That his Honor, the presiding Judge, erred in his instructions to the Jury, relative to the law involved in the case.
    Irby, for the motion.
    Cited Vandeuzen v. Scissam, 3 Johns. Hep. 499. The cases'which will be relied on to sustain the action, are not in point. In Caldwell v. Julian^ the action was not for breaking plaintiff’s close; and in Rhodes v. Bunch, the defendant did not plead liberum tenementum.
    
    Dunlap, contra.
    
    Cited Caldwell v. Julian, 2 Mills’ Con. Rep. 294. 'Rhodes v. Bunch, 3 McC. 66.
    
      
       Jackson v. Reynolds, 1 Caines, 444. Same v. Vredenbergh, 1 Johns. Rep. 159. Same v. Dobbin, 3 Ib, 223. Same a. Scissam, Ib. 499. Same v. Bard, 4 Ib. 230. Davies «. Pierce, 2 T. R. 53, and see 1 Starkie’s Ev. 70, and Turpin v. Brannon, 3 McC. 261.
    
   Nott, J.

delivered the opinion of the Court.

All the groimds relied on for a new trial, may be resolved into the two following. 1st. That the presiding Judge erred in rejecting the testimony of Littleton Parsons. 2d. That he erred in instructing the Jury that the plaintiff was entitled to recover, although the defendant had established a title in himself.

'With regard to the first, the Judge seems to have adopted the rule said to have been laid down by Lord Mansfield, in the case of Walton v. Shelly, 1 T. R. 296, “that no party who has signed a- paper or deed, shall ever be permitted to give testimony to invalidate that instrument which he has so signed.” But it will be seen by a reference to the case of Bent v. Baker, 3 T. R. 36, that upon a reconsideration of that question, the rule was limited to negotiable instruments: And it has since been entirely exploded, as altogether unsound. Jordaine v. Lashbrooke, 7 T. R. 601. And this latter decision has been adopted in this State as furnishing the true rule of decision on the subject. Knight v. Packard, 3 McC. 71. It was no objection to the competency of the witness, that he had held himself out as the owner of the land, and had mortgaged it as bis own. The objection could only have gone to his credibility, but not to his competency.

I also differ in opinion with the presiding Judge on the second ground. The defendant had pleaded the plea of liberum tene-mentum; and the real question submitted to the Court and Jury was, whether the title was in the plaintiff or defendant: If, therefore, the defendant shewed a title in himself, he was entitled to a verdict. I think the Judge erred in his instructions to the Jury, and a new trial, therefore, must be granted on both grounds.

New trial granted.  