
    *Adams v. Martin.
    July Term, 1851,
    Lewisburg.
    (Absent Cabell, P.)
    i. Unlawful Detainer — Evidence—Nature of Possession —Parol Lease. — upon the trial of a writ of unlawful detainer, defendant sets up title in himself. Plaintiff may prove that the defendant entered on the premises under a parol lease from himself; though the lease proved was to continue more than one year.
    2. Same — Same—Witnesses—Joint Tenant. — The defendant claiming title under a deed made to himself and another as joint tenants, that other person is not a competent witness for him to sustain his right of possession.
    This was a proceeding- by writ of unlawful detainer in the County court of L/ee, in which William Adams was plaintiff and Wilkerson Martin was defendant. On the trial the defendant claimed to hold the land in controversy under a deed from David H. Campbell, administrator with the will annexed of Arthur Campbell, to himself and Joseph P. Bishop, bearing date the 28th November 1844. The plaintiff alleged that there existed a verbal contract between the plaintiff as landlord and the defendant as tenant of the land in controversy, commencing in the year 1840; and to prove the same, introduced a witness who stated that the defendant had informed him that he had come in possession of the land in controversy upon an oral contract with the plaintiff, that the defendant should proceed to improve the land and premises; and that he was to enjoy the use and occupation thereof until he should be thus paid for all the improvements he should make. And the defendant contending that from the statements made by the witness it appeared that the time of the' continuance of the alleged lease was indefinite, and from its character *not to be performed as an agreement or terminate as a lease within the period of one year from the alleged commencement thereof, he by his counsel objected to the introduction of oral testimony to prove such lease, on the ground that it was in violation of the statute of frauds and perjuries. But the Court overruled the objection and admitted the evidence : and the defendant excepted.
    In the further progress of the cause the defendant offered to introduce Joseph P. Bishop as a witness, but, the plaintiff objected to his introduction, upon the ground that the witness was interested in the result of the suit; the land having been conveyed by Campbell to the defendant and the witness jointly, under which conveyance they claimed title; and which was relied upon and given in evidence on the trial by the defendant. The Court sustained the objection and excluded the witness: And the defendant again excepted.
    There was a verdict and judgment for the plaintiff; and Martin thereupon obtained a supersedeas to the judgment from the Circuit court of Dee county: And when the cause came on to be heard in that Court, the judgment was reversed for the refusal of the County court to admit Joseph P. Bishop as a witness. Prom this judgment Adams applied to this Court for a super-sedeas, which was allowed.
    J. W. Sheffey, for the appellant, and
    S. Logan, for the appellee, submitted the case.
    
      
      See monographic note on “Unlawful Detainer," appended to Dobson v. Culpepper, 23 Gratt. 352.
    
   ALLEN, J.,

delivered the opinion of the Court.

Inasmuch as it appears from the 2d bill of exceptions taken by the defendant in error to the decision of the County court excluding Joseph P. Bishop as a witness on the ground of incompetency, that said Bishop was a joint tenant with said defendant of the premises, the possession whereof was the subject in controversy, *lhat the defendant had relied upon the deed which constituted said joint tenancy with said Bishop in his defence, it seems to the Court here that said Bishop was directly interested in the result of the suit, being seized with his co-jointtenant per my et per tout, the possession of the defendant was his possession, and his evidence tending to maintain such possession in the said defendant was evidence tending to establish a fact enuring to his own benefit; and that he was properly excluded as an incompetent witness.

And it further seems to the Court, that the County court did not err in overruling the objection of the defendant in error to the testimony set out in his first bill of exceptions, inasmuch as although the contract the evidence tended to prove may have been void under the statute of frauds, it was still competent for the plaintiff to shew that the defendant had entered under an agreement to rent the premises, and stood in the relation of tenant to the plaintiff; and whether such tenancy was to endure for a year or a longer period, could not affect the question depending on the relation the parties bore to each other when the defendant entered upon the premises.

It is therefore considered by the Court that the judgment of the Circuit court reversing the judgment of the County court is erroneous ; and the same is reversed with costs to the plaintiff in error. And this Court proceeding to render such judgment as said Circuit court should have done, it is further considered that the judgment oí the County court be affirmed, and that the plaintiff in error recover of the defendant in error his costs by him about his defence in the Circuit court expended.

BALDWIN, J.,

dissented.

He said he thought the judgment of the Circuit court was wrong in holding that Bishop was an incompetent ^'witness, whatever might be the rule in regard to other actions. That by express provision of the statute regulating writs of unlawful detainer, a judgment in such a proceeding concluded nothing in regard to the title or the right of possession, the effect being only when for the plaintiff, to give him the mere possession, and when for the defendant to leave him in the possession; but in no wise affecting the title or right of possession in any higher action between the same parties. That the judgment, if for the plaintiff, would give him no action against the defendant or the witness for mesne profits, and if for the defendant, no protection to him or the witness in respect to future profits; and that in this case a_ judgment for the defendant would be no evidence between him and the witness as to the title or right of possession, nor give any possession to the witness if he should be kept out by the defendant.  