
    Andrew McMullen vs. Kinchin Mayo.
    In an action of forcible entry and detainer, it is not error to exclude the answer of a witness giving the statements of the plaintiff when claiming to be in possession of the premises in controversy ; as the mere statements of the plaintiff were not evidence in his own behalf.
    A parol submission and award, in regard to real estate, will be binding, if the contract between the parties to the award, as to the real estate, is itself binding; where, therefore, “ the right to a mill and lumber,” was submitted by parol to arbitrators, and they gave a parol award, the latter was held not to be binding; the terms of the submission being broader than the language of the statute of’frauds would justify, which makes contracts, as to the lease of lands for a longer period than one year, not binding, unless in writing.
    A new trial will not be granted for the improper exclusion of testimony, ‘ where it is apparent, that had the testimony been admitted, the result would have been the same, and where it was scarcely possible that a new trial would produce a different verdict.
    A. M., the administrator of W. A. M., sued M., in an action of forcible entry and detainer, for the possession of a saw-mill. On the trial, it was proved that W. A. M. bought of C. M. ; and 'that C. M. had made a contract with M., that if M. would help build, and tend, when built, the saw-mill, he should have half the clear profits, so long as he complied with the agreement, which was made in 1841, and of which W. A. M. had notice when he bought; M., under this agreement, continued in possession until May, 1846, when A. M. brought the 'writ of forcible entry; on these facts, the jury having found for M., the high court of errors and appeals refused to grant a new trial, although the court below had improperly admitted a parol award, in evidence, as to the matters in controversy.
    It seems that an administrator cannot proceed by the proceeding of forcible entry and detainer, to recover possession of lands of his intestate.
    In error from the Tallahatchie circuit court; Hon. Francis M. Rogers, judge.
    Andrew McMullen, in May, 1846, commenced an action of forcible entry and detainer, against Kinchin Mayo, before three justices of the county of Tallahatchie. The premises in controversy were described in the affidavit as “a certain tenement of one-half acre of land, with its appurtenances, to wit: one saw-mill, lying and being in the county aforesaid.” A jury were empanneled who found for the defendant. The plaintiff appealed to the circuit court, where the cause under the statute was tried de novo, and a jury again found for the defendant, in these words : “ Upon their oaths do say, that they find the defendant did not, within three years next before, the exhibition of the complaint filed by the plaintiff, forcibly or unlawfully enter upon the tenement in the said complaint mentioned, and turn the plaintiff out of the possession thereof, &c.”
    From the bill of exceptions, sealed at the trial, it appears that the plaintiff read a deed from Cullen McMullen and wife to William A. McMullen, to the property in controversy, among other; then the deed of trust given by William A. McMullen, upon the property purchased, to James S. Bailey, to secure the purchase-money to Cullen McMullen ; then the letters of administration granted to the plaintiff, on. the estate of William A. McMullen, by the probate court of the county.
    The plaintiff then proved by David Harlan, that William A. McMullen died two years before the commencement of the suit, without wife or child, and that the plaintiff was his brother; that William A. McMullen, when he purchased of Cullen, took possession of the property, and held it until his death; that the plaintiff had been in possession ever since claiming the same and cultivating it; that the saw-mill in controversy, was on the land described in the deed ; that up to the 7th of May, 1846, the plaintiff had been in possession of the mill, hauling logs to it, sawing lumber, selling it, and exercising other acts of ownership over it; that the defendant served at the mill during the time, with the plaintiff; both sold lumber sawed at the mill; he did not know whether the defendant was partner, or was hired to attend the mill; that witness tended the mill for several days at one time, for the defendant, when the latter was absent; the defendant paid him for his attendance ; that in the spring before the month of May, 1846, he was at the mill, and heard the plaintiff forbid the defendant from coming into or about the mill; after some conversation, a fight ensued between the plaintiff and defendant; after which, for seven or eight days, the defendant, who was considerably hurt in the fight, was absent from the mill, but returned and took possession, and held it against the consent of the plaintiff; that when the defendant took possession of the mill, after the fight, the plaintiff did not go to it.
    The plaintiff then asked the witness, if he did not hear him after the fight, and before the institution of the suit, and before Mayo returned to the mill, frequently claim to be in possessionv of it. The court, at the instance of the defendant, would not permit this question to be answered, and the plaintiff excepted.
    This witness, on cross-examination, proved that Mayo, for two or three years past, was generally at the mill, superintending and sawing in it, and attending to its business, in conjunction with the plaintiff.
    The defendant then read this agreement in'writing : “ Know all men, that I, Cullen McMullen have, for divers good causes, consented and agreed with Kinchin Mayo, that if he would help build, and after built, attend to, and tend a .saw-mill erected at the grist-mill, on the north Tillatoba, that I will give him the half of the clear profits arising therefrom, when collected, but not until their leaving it so in my power, that neither mill nor lumber shall be liable for any of his contracts or debts now made, or that can be hereafter made; but that all the profits arising from said mill, shall go, and be paid over to his family, unless otherwise agreed on by him and family; and in all cases, I, Cullen McMullen, do bind myself and heirs to secure to Mayo his interest, as recited, in said saw-mill, so long as he complies with his agreement, and no longer. Cullen McMullen.”
    The plaintiff objected to this being read, because it was a lease for more than one year, but the objection was overruled.
    Michael Farmer, on the part of the defendant, proved that the plaintiff and defendant verbally submitted the right to the mill and lumber, to the arbitration of the witness and one Burkhalter; agreeing, both of them, to abide the award; that they made their award, based upon the written agreement of Cullen McMullen, which both plaintiff and defendant agreed should guide them ; and decided that the defendant had a right to one-half the mill. The plaintiff objected to this testimony, but his objection was overruled.
    Abram Patterson, on the part of the defendant, proved that William A. McMullen knew, when he bought the land, of the agreement between Cullen McMullen and Mayo ; and that Mayo was then in charge of the mill, when William A. McMullen bought, and continued so in charge of it, up to the time of his death, and had been in the charge and management of it, ever since it was built, under the contract with Cullen.
    James Bailey, for defendant, proved that Mayo had been in possession of the mill ever since its erection.
    The plaintiff asked the court to instruct the jury, that if the plaintiff entered the-mill, and forbade Mayo from entering, and Mayo then left, and the plaintiff took possession of it, and Mayo afterwards entered, and held, possession against the consent of the plaintiff, they must find for the plaintiff. This was refused. But the court instructed the jury, that if they believed Mayo entitled to the possession, they must find for him ; and, unless they believed Mayo unlawfully turned the plaintiff out, or unlawfully held him out of possession, they must find for him.
    After the verdict of the jury,, the plaintiff sued out this writ of error.
    
      Garnett, for plaintiff in error, insisted that the court should reverse the judgment rendered in the court below, on the following grounds, to wit:
    1st. Because the court refused to permit the plaintiff, in the circuit court, to prove the fact of his claiming possession of premises in dispute.
    2d. Because the court permitted the defendant to read the agreement between Cullen McMullen and himself, which was in the nature of a lease for a longer period than twelve months.
    3d. Because a witness was permitted to prove a parol submission and award between the parties, about the premises in controversy.
    4lh. Because the court would not give the charge asked by plaintiff.
    5th. Because the court gave the instructions asked by defendant.
    
      Acee, for defendant in error, in reply.
    1. To the first exception, I will barely say, that the principle is now too well .established to be controverted, that a party cannot make evidence for himself.”
    2. To the second, I will be equally brief in my authorities. The law of this state, requires that all contracts .for a lease of land for more than one year, shall be in writing.
    3. To the third, I will reply that there was jio error in the court below, in permitting the witness to prove that there had been a parol submission between the parties. An agreement to arbitrate matters of difference between parties, may be made, like all other agreements, by parol or otherwise, except in such cases as are prohibited by law. The submission of a cause, pending in court, to arbitration, may be made by parol. Wells v. Lain, 15 Wend. 99.
    4. The fourth exception is equally untenable; the testimony did not authorize the charge asked. Mayo, the defendant, had never abandoned his possession of the premises in litigation, for a single moment. It is true, that the plaintiff attempted to expel him, by violence, from the same, and seriously injured him in the struggle, which circumstance compelled him to remain at his dwelling-house afewdáys; but a temporary absence, produced by such a cause, could scarcely convert the plaintiff’s right to a joint possession, into an exclusive one.
    5. The fifth exception needs no remark. The charges given by the court below, must meet with the unqualified approbation of this tribunal.
   Mr. Justice Clayton

delivered the opinion of the court.

This is a writ of error from a trial of forcible entry, and de-tainer, in Tallahatchie circuit court.

The first exception is, that the court ruled out from the jury, the answer to a question asked by the plaintiff, if the witness had not frequently heard plaintiff claim to be in possession of the premises. There was no error in this, for the naked statements of the plaintiff, were not evidence in his own behalf.

The only other objection, which it is deemed necessary to notice, was the admission of proof of a farol submission and award, in regard to the matter in controversy.

At an early day, it was held that there could be no binding award in regard to the title of real property. A more sensible and reasonable rule now prevails. Wherever the parties may, by their own act, transfer real property, or exercise any act of ownership with respect to it, there they may refer any dispute concerning it, to the decision of a third person, whose ajvard may be obligatory.” Kyd on Awards, 61. If the parol agreement of these parties, as to the possession, would have been binding, it follows that the submission and award were also binding.

The witness who testified as to the submission, stated that the “ right to the mill and lumber was submitted.” Our statute of frauds makes verbal contracts, as to the lease*of lands, for a longer time than one year, not valid. We think, .therefore, that the terms of this submission were too broad to be binding, unless in writing.

For this error, the judgment would be reversed, but that we are satisfied, from the whole case, that justice has been done, so far as it can be, in this mode of proceeding, and that another trial must have the same result. Barringer v. Nesbii, 1 S. & M. 22.

The only right of the plaintiff to the premises, the record shows, arises from his being the administrator of W. A. McMullen, deceased, who had bought the land of Cullen McMullen, in 1843, and at the same time conveyed it by deed of trust to James S. Bailey, to secure the payment of the debt. Cullen McMullen had, before this sale, made an agreement in writing with the defendant, that if he would help build, and after built, attend to, and tend a saw-mill, (describing this,) he should have half the clear profits arising from said saw-mill, and he bound himself and his heirs to secure to the defendant his interest therein, so long as he complied with the agreement, and no longer. It was in proof, that William A. McMullen had notice of this agreement. It bore date, in March, 1841. and this proceeding was commenced in May, 1846. The agreement, of necessity, implied the occupancy of the premises by the defendant, and it was in proof that he had been in possession, from the time of the building of the mill, which, from the proof, appears to have been more than three years, before this suit was brought.' The jury also find the fact, that the defendant did not, within three years, unlawfully enter, &c.” It seems to us, therefore, that the difficulties in the way of the plaintiff, in this mode of proceeding, are insurmountable.

We very much doubt his right, as administrator, to proceed in this mode. See 5 Mass. 240. The proof shows that the defendant was entitled to a joint occupancy, and that his entry and possession were, at all events, originally lawful, and that he had been in possession more than three years. It is scarcely possible, therefore, that the exclusion of the testimony objected to, would have produced a different verdict, or that another trial could have a different result.

The judgment is affirmed.  