behalf of such town, county, or state. In Cumming, v. Pinkham, (Adams, 353,) it was ruled, that an inhabitant of a town, was a competent witness, though the town was a party in interest, and called him to testify in its favor. In Bloodgood, v. Jamaison, (12 John. 285,) it was decided, that an inhabitant of a town, liable to be taxed for the support of the poor, is a competent witness for the plaintiff, in a suit, for a penalty, to be applied to the use of the poor of that town. In Orange, v. Spring field, (1 South. 186,) an inhabitant of a township was a witness, in a question of a settlement of a pauper. In Shenck, v. Corshen, (1 Cox, 189,) it was decided, that an inhabitant of a county, or township, was a competent witness, in a suit, in which such county, or township, was interested. In Connecticut, v. Brandish, (14 Mass. 296,) it was decided, that in an action by a state, in the courts of another state, an inhabitant of a state suing, is a competent witness, for the plaintiff. Other cases might be referred to, were it necessary, but we are satisfied, that the Common Pleas of Clermont county, is the proper tribunal to hear and decide this cause, and that this court has no right to take jurisdiction of it. It must therefore, be remanded.

WILSON v. DELARACK, ET AL.

JUDGES BURNET AND SHERMAN.

1827.

When the administrators of an intestate deny by their answer the allegations in the bill, the allegations must be proved.

The bill states, that McManus executed a mortgage to the complainant, Wilson, to secure the payment of a sum of money, and afterwards sold the mortgaged premises to the defendant, A. Delarack, subject to the mortgage. That a part of the purchase money was left in the hands of A. Delarack, to be applied in discharge of the mortgage: That A. Delarack delivered goods to Wilson at dif. ferent times, to the amount of one hundred and ninety-two dollars: That a set. tlement afterwards took place, at which the amount was ascertained: That an agreement was then made, that the sum should be credited on the mortgage; but the mortgage not being present, that Wilson should give to A. Delarack, his note for the amount, which should be afterward endorsed on the mortgage, and the note cancelled: That in pursuance of this agreement, Wilson gave his negotiable note to A. Delarack, who shortly after assigned it to his father, M. Delarack, without consideration, and to defraud the complainant. It is further stated that M. Delarack has obtained judgment against the complainant, for the The bill prays for a perpetual injunction, and that the amount due on the note, may be applied as a credit on the mortgage. The insolvency of A. Delarack is also alleged.

note.

The answer of A. Delarack, admits his purchase from McManus, subject to the mortgage, and also, the delivery of the goods, the execution of the note by Wilson, and the assignment of it to M. Delarack, but denies the agreement, that the amount should be credited on the mortgage, and avers that the assignment of it to his father was bona fide, and for a valuable consideration.

The administrators of M. Delarack answer, that they are ignorant of the principal facts alleged in the bill. They admit the assignment of the note to their intestate; they believe it was made in good faith, and for a valuable consideration. They deny fraud, and claim the judgment to be legally and equita bly due.

Dunlevy and Collet, for complainant. Sergeant, for defendant.

By the COURT.

The fraud charged in the bill, is denied in the answers, and is not sustained by the testimony. It appears from the exhibits that the complainant has obtained a judgment on his mortgage for the amount due, by virtue of which, the mortgaged premises have been sold, so that A. Delarack has lost the property, and the money he has paid on it, and the object of this bill is, in effect, to require of him a further payment. To do this, a very clear case ought to be made

out.

If A. Delarack, either at the delivery of the goods, or the execution of the note, agreed that the amount should be credited on the mortgage, and if the note was given on the faith of such an agreement, it was a fraud in him afterwards to assign it, and so far as his interest is concerned, the agreement ought to be enforced.

On the supposition that the facts in the bill are true, the delivery of the goods created no debt on the part of Wilson, and the note being given for a special purpose, could not be assigned, without a breach of faith on the part of the payee; but the difficulty is, that the complainant does not sustain his case. The answers deny the equity of the bill. The testimony in support of the bill, amounts to nothing more than strong presumption, which is rebutted by presumption, on the other side, equally strong.

If the goods were delivered as a payment on the mortgage, a receipt would have answered the purpose much better than a note; or if a note was preferred, why was it made negotiable, and why did the complainant take a judgment for the full amount of the mortgage, without giving credit for the goods.

If these matters can be satisfactorily accounted for, still, as the bill is denied, the complainant was bound to sustain it by testimony sufficient to over balance the answer. This he has not done. The testimony as to the agreement, is vague and uncertain, and leaves it about as probable that it was not made, as that it was.

This being our view of the case, it is not necessary to examine it in reference to the rights of M. Delarack the assignee.

Bill dismissed.

WAGGONER v. SPECK, ET AL.

JUDGES HITCHCOCK AND BURNET.

1827.

Lands occupied by the permission of the owner under a parol agreement that the occupation sha!! continue during the life of the occupant, cannot be subjected in equity to the debts of the occupant.

The bill charges, that Waggoner has recovered a judgment against Speck, in the Common Pleas of Montgomery county: that he holds another judgment against Speck by assignment: that no property can be found, on which the executions on those judgments can be levied: that Speck purchased a lot from Cooper in his life, which he improved, and now lives on; and that he refuses to take a deed for the said lot, with a view of keeping it out of the reach of his creditors. The bill prays that the lot may be sold, and that the heirs of Cooper may be required to make a title to the purchaser. The defendant, Speck, denies that he purchased or paid for the lot, or that he has any title to it, legal or equitable. He admits that he is in possession of the lot; alleges that he took possession by the permission of Cooper, who promised that he would permit him to occupy it during his life; and that Cooper had said, at different times, that he intended to give the lot to the daughter of the defendant.

The heirs of Cooper have answered, that being infants of tender years, they have but little knowledge of the matters in the bill: that they have understood and believe, that the defendant, Speck, never purchased the lot: that he occupied it by the indulgence of their father, but that he has no right to it, legal or equitable.

Stoddart, for the complainant. Bacon, Smith, and Lowe, for the defendants. By the COURT.

It appears from the testimony, that the defendant, Speck, has occupied the lot in question several years, and that he has improved it; but there is no evidence of any contract between him and Cooper for a purchase, nor does it ap pear, that any payment has been made, either on account of a purchase, or of a lease. Several of the witnesses state, they have heard Cooper say, he would let Speck live on the lot during his life, and that he intended to give it to his daughter, Nancy, and it is evident that Speck relied on such a promise, when he took possession, and made his improvements; but these facts and circumstances make out a different case from that which is stated. The discrepancy is so great as to render it impossible to give relief in any form, under the present bill.

The objection relied on in the argument, that the contract, if any existed, was not in writing, would not of itself, necessarily, bar the complainant from the relief which he seeks. It has become the settled construction of our statute for the prevention of frauds and perjuries, that the delivery of possession is such

a species of part performance as may take a case out the statute, when the effect of it, is not controled by other facts connected with the case. Bill dismissed.

MOORE v. BEASLEY.

In an action for use and occupation, the tenant having enjoyed the premises cannot question the title of the landlord.

Nil habuit, cannot be plead where the landlord has been in possession.

A parol lease aud possession delivered, is not within the statute of frauds.

This was a writ of error, to reverse a judgment rendered in the Common Pleas. It appeared from the record, that the plaintiff below, brought an action of assumpsit, for use and occupation. The defendant pleaded the general issue, with notice, that he would offer evidence to prove that the premises for which the rent was claimed, were not the property of the plaintiff. At the trial, the plaintiff proved, that he leased the property to the defendant for one year, for twenty dollars: that at the time of the agreement, there was a conversation on the subject of continuing the lease for a longer term: that the defendant took possession in 1820, under the above renting, and has continued to occupy the premises ever since: and that the plaintiff had been in the habit of leasing the same premises to different persons, for fifteen, or twenty years.

The defendant, under his plea and notice, offered in evidence, a grant of the premises to C. Wallace, made in 1824, and a sale from Wallace to himself. This testimony was objected to, and overruled.

The defendant then moved for a non suit, on the ground, that the contract was void, under the statute against frauds and perjuries, which was overruled.

He then moved the court, to instruct the jury, that the case was within that statute, which was also refused, and bills of exception were taken. A verdict and judgment were rendered for the plaintiff, and a writ of error taken to reverse it, on the matters stated in the bills.

Brush, for the plaintiff in error.
By the COURT.

Hawes, for the defendant in error.

The circumstances under which Moore entered and occupied, made him a a tenant from year to year, at the rent agreed upon for the first year, and he is liable to Beasley for rent, at that rate, in an action for use and occupation unless he can avail himself of one of the grounds, set up by way of defence, in the court below, the rejection of which, is now assigned for error.

The first ground, is, that the defendant below, was not permitted to prove a title in himself, acquired, after he had occupied the premises several years, in the character of tenant to the plaintiff. From the earnest manner in which this point was argued, we have been induced to give it a serious consideration, and although it has been our uniform course, to reject evidence of this character, under a conviction, that the principle was well settled,that a tenant who has enjoyed the premises to the end of his term, without interruption, cannot be per

mitted to question the title of his landlord, we have carefully examined the authorities cited, and the course of reasoning by which the counsel endeavored to apply them. The doctrine in 1 Pow. 152, is, that if one make a lease to another, and the lessor has then no interest in the land leased, it is a good plea, for the lessee to say, that the lessor had nothing in the lands, at the time of the lease. The doctrine is taken from Coke Lit. 47, (b.) where the commentator gives the reason of the text, which is this: "that in every contract, there must be quid pro quo, for contractus est quasi actus contra actum, and therefore, if the lessor hath nothing in the land, the lessee hath not quid pro quo, nor any thing, for which he should pay any rent, and in that case, he may plead, that the lessor non dimisit, and give in evidence the other matter. This commentary seems too plain to require illustration. It cannot be affirmed that a person has nothing in land, which he has had in possession fifteen or twenty years; nor can it be said of a lessee, that he hath not quid pro quo, or any thing for which he should pay rent, after he has received possession from his lessor, and enjoyed without interruption, during his term. The plaintiff's counsel, seems to consider a person as having nothing in land, unless he has a perfect legal estate, but such, we apprehend is not the meaning of the law, a mere possessory title is sufficient. The tenant who has enjoyed his term uninterrupted, has received the full consideration of his promise, and cannot afterwards plead non dimisit, or nil habuit. In Chettle v. Pound, (1 L. Ray. 746,) which was debt for rent, it was ruled that if the plaintiff had been in possession, though but tenant at will, the defendant could not give nil habuit in evidence, without having been evicted. An eviction in this case, is not pretended. The tenant occupied without molestation of any kind, to the end of his term.

In Watson v. Alexander, (1 Wash. 351,) the court say: the declaration charges enjoyment of the property, by the appellants during the term for which the rent is claimed, which is sufficient to maintain the action. On the whole, we are compelled to say, that our opinion remains unchanged; we still think, that a tenant cannot be allowed to question the title of his landlord, from whom he has received possession, after he has enjoyed his term without interruption.

The second error relied on, depends on the construction of the statute, for the prevention of frauds and perjuries. This court has decided, as often as the question has been made, that part performance may take a case out of that statute, and that delivery of possession, on a parol lease, is sufficient for that purpose.

There was, in this case, not only a delivery of possession to Moore, but an enjoyment by him, of every thing for which he contracted. On the part of Beasley, the contract was fully performed: it does not, therefore, come within the design of the act.

The case of Wilber v. Paine, (1 Ohio Rep. 252,) he may be considered as settling this point.

Judgment affirmed.