
    
      Doe on the demise of the heirs of DANIEL THOMPSON v. MARY MATTHEWS.
    Evidence that one in possession of a tract of land declared that he held it as tenant of a certain person, is admissible, even although it be shown that such tenancy was created by a written instrument, and that instrument be not produced.
    Ejectment, tried before Bailey, J, at tbe Fall Term, 1862, of Moore Superior Court.
    The plaintiff introduced a grant to Daniel Thompson for the land in controversy, and proved that Thompson died before the date of the demise, (viz. 29th January, 1858,) and that the lessors of the plaintiff were his heirs at law. He further proved that the defendant was in possession at the time of the service of the declaration.
    The defendant then introduced a deed, dated September, 1844, from the sheriff of the county of Moore, to Daniel W. McNair, the illegitimate son of the defendant, for the land in controversy — it having been sold for the taxes. She showed that McNair died in February, 1848, without leaving issue, or brother or sister, or the issue of such. It was further proved that she and her son Daniel were in the actual possession of the land from 1835 till his death, and there was evidence that after his death she continued in the actual possession for two or three years, and that during this time one Jollie and his wife entered upon the land, and occupied the house, with the defendant, for some short time, and that the defendant left the premises sometime In the spring of 1851, leaving some of her effects in the bouse with Jollie and his wife. Jollie and his wife remained in possession about one year, when they left; and as soon as they did so, the defendant returned to her dwelling house, and has continued there ever since.
    The defendant offered to show that Jollie was holding the • the lands as her tenant, and for this purpose she introduced one Mclver. The counsel for the .plaintiff asked the witness if the contract between Jollie and the defendant as to the lease of the land was reduced to writing, and he- stated that it was, and that he was the subscribing witness-. The defendant’s counsel then proposed to ask the witness-if he did not hear J ollie, while he was in possesion of the land, admit that he was holding under the defendant. This was objected to by the plaintiff, upon the- ground that the contract between Jollie. and the defendant was reduced to writing, and was not produced on the trial.
    The court rejected the evidence:, and the defendant excepted.
    It was admitted that the deed from the sheriff to McNair was only color of title.
    The court charged the jury that if they believed the testimony to be true, the plaintiff was entitled to- recover. There was a verdict for the plaintiff, and a rule for a new trial, which was discharged. Thereupon the defendant appealed.
    No counsel in this court for the plaintiff.
    
      Strange and McDonald, for the defendant.
   Battlb, J.

In the case now- before us, the fact of the tenancy having been properly shown by parol, the declaration of the tenant as-to the person -under whom he held, was admissible by the same kind of evidence as jpars-rei gestee. This principle is-well established in this State, by several decisions, of which Askew v. Reynolds, 1 D. and B., 367, is the leading case. For the error committed in-the- rejection of. the testimony offered to show that Jollie held the land in controversy as the tenant of the defendant, the judgment must be reversed, and a venire de novo awarded.  