Morse et al. v. Clayton.

by the trustees of Franklin Academy for two of the same lots. The counsel have submitted as the evidence in the case an agreed state of facts. From this it seems that all the defendants derived title, either directly or remotely, from the mortgagors. Butterworth, however, also claimed to hold lot five by lease from the trustees of Franklin Academy, long subsequent in date to the mortgage; and Ottley set up a title of the same kind. The validity of these leases is maintained on the ground, that the term of Oliver was forfeited for non-payment of rent, and that consequently the trustees had a right to make new leases. This power is denied, because, as it is said, there was no entry after the breach of conditions. This question is easily answered. In the first place, it has not been shown that Oliver held subject to a condition. The lease to him is not set out. We cannot say that there was a forfeiture, unless the title and condition are before us. The usual mode of taking advantage of a breach of condition for the payment of rent, is by action of ejectment after actual demand of the rent in arrear. 3 Cruise, 300. But the question admits of another answer. tenants may have been bound for the annual rent. could not submit to a forfeiture, take a new lease, and set it up against their original lessor. It is competent for parties to stipulate for the payment of rent as they may think proper. Now, as neither the original lease to Oliver, (if he held by lease,) nor the leases to defendants from him are before us, we cannot decide on the question of forfeiture. The answer of Ottley alludes to this question, but that is not evidence; nor are counsel sufficiently distinct in their arguments to give us full information on the subject. In the agreed statement of facts it is not found. The construction and effect of the lease to Oliver was a matter of law, and it should have been produced. We cannot decide that a right has been forfeited, until we know what that right is.

The under

If so, they

But the decree was erroneous in directing the sale to be made for cash. The statute directs that such sale shall be made on a credit of six months. Hutch. Code, 770, $ 4. Yet it can be made for cash, or upon longer credit, if the parties desire it. Ib.

Newman et al. v. Mackin.

773, art. 17, § 3. As there were four distinct lots, the decree should have directed a sale of only so many as was necessary. As the decree is right except in this particular, it may be corrected in this court.

Judgment reversed, and decree directed to conform to this opinion.

MARY NEWMAN ET AL. US. THOMAS MACKIN.

In an action for unlawful detainer, where a tenancy on the part of the defendant from the plaintiff is shown, it is not competent for the defendant to object to the want of right of possession or of property in the plaintiff; the tenancy being proved and its expiration, the right of the plaintiff to recover is clearly established.

A party in possession of real estate, who is sued for an unlawful detainer, cannot defeat the plaintiff's right by abandoning the possession to another; such third party will occupy the same relation to the plaintiff that the defendant did.

A witness cannot be interrogated as to the generally bad moral character of another witness; the question should be confined to the reputation of the witness for truth and veracity.

Where the relation of landlord and tenant is shown to exist between the

plaintiff and defendant in an action of unlawful detainer, it is not competent for the defendant or one coming in under him, to prove by documentary evidence of title the want of title in the plaintiff.

Where, on the trial of an unlawful detainer, the proof was that the defendant, soon after the institution of the suit, abandoned the possession, and other persons intruded into the premises, claiming not for her, but for themselves : Held, that she could not be responsible for the rent which accrued after her abandonment.

Where the jury, in an action for unlawful detainer, have assessed more rent than is lawfully due, the plaintiff may, by remitting the excess, obtain a judgment in the high court of errors and appeals, for what the proof shows him to have been lawfully entitled to.

In error from the circuit court of Adams county; Hon. Stanhope Posey, judge.

Newman et al. v. Mackin.

Thomas Mackin sued Mary Newman in an action of unlawful detainer before three justices in the city of Natchez, who, upon a trial and verdict before them, awarded a judgment according to the statute, from which she appealed to the circuit court and gave Robert McCullough as her surety. That court subsequently tried the case, and awarded a second time judgment for the plaintiff upon a verdict of a jury, assessing, in addition to the right of possession, fifty dollars for arrearages of rent. The facts on which the case turned are sufficiently stated in the opinion. In both courts the defendant below moved to quash the warrant and dismiss the proceeding, because the court of justices was an unconstitutional one; but the motions were overruled. The defendant below sued out this writ of

error.

Sanders and Haggin, for plaintiff in error, argued, 1. That the court of justices was unconstitutional. 2. That the proof did not sustain the verdict.

3. That the proof should have been admitted to show that Mackin himself was but a tenant, and his leasehold interest was at an end.

Davis and Cox, with whom was Montgomery and Boyd, for defendant in error.

1. The justice's court, before which the cause was originally tried, is a constitutional tribunal. Art. 9, $ 24; Thomas v. The State, 5 How. R. 20; and Houston v. Royston, 7 Ib. 543. The question specifically, however, is set to rest by a recent decision of this court, in Rale v. Fyler, 10 S. & M. 440.

2. The court properly excluded the testimony of the witness, "as to the general moral character of one of the witnesses in behalf of plaintiff, and whether it was good or bad." 1 Greenl. Ev. § 461, and notes. In Douglass v. Tousey, 2 Wend. R. 352, the court say, "all are agreed that the true and primary inquiry is into the witness's general character for truth and veracity."

3. Nor did the court below err in excluding the testimony offered by defendant, to show that the plaintiff had no title to

Newman et al. v. Mackin.

the premises in controversy. By inspecting the evidence, as embodied in the bills of exceptions, it will be found that defendant had entered into the occupation of the property, as tenant from month to month, of the plaintiff; had frequently acknowledged him as her landlord; had paid him rent therefor; had been sued as such tenant for arrears of rent, and had allowed judgment to be recovered against her; and when holding over, and being sued with notice to quit, had not pretended to disclaim her tenancy. In the face of such proof, the documentary evidence offered by defendant was plainly inadmissible. 1 Caines, Rep. 444; 2 lb. 215; 1 Cow. Rep. 575; 3 Johns. Rep. 514; Balls v. Westwood, 2 Campb. 11; 1 Greenl. Ev. § 25.

4. If, to this, it be replied, that the documentary evidence offered by defendant was not to dispute the title of the plaintiff as landlord, but to show that his title had expired, we rejoin, first, that it is untrue in fact, as the evidence had no such tendency; and, secondly, that if relevant in fact, it is inapplicable to unlawful detainer, which, under our statutory provisions, stands upon a very different footing from ejectment. In the latter action, the paramount legal title is alone in issue; in the former, only the right of possession is in controversy. In ejectment, the defendant, (if not in some way estopped,) can show title in any, the remotest stranger with whom he pretends no privity; in unlawful detainer he can disprove only, (in the words of the statute,) "that he continues to hold it (the property) against the consent of the party entitled to the possession thereof." H. & H. 564, § 71. And the party so entitled to possession may be "as tenant of the freehold, tenant for years, or otherwise." And in Loring v. Willis, 4 How. Rep. 383, it was held, that "the writ of unlawful detainer is a possessory action merely, and the title of the parties and the right of property are not involved in it."

5. Again, there was no privity shown, or attempted to be shown, between the defendant and John Roy, who, it was claimed, was entitled to the premises. This was indispensable. The rule is emphatically laid down in Balls v. Westwood, 2 Campb. R. 11, by Lord Ellenborough, as follows: "You may

Newman et al. v. Mackin.

as well attempt to move a mountain. You cannot counteract the continuance of the title of the person under whose demise you continue to hold. The security of landlords would be infinitely endangered if such a proceeding were permitted." Nor, had such a privity been shown, was it pretended that it was with the consent of Mackin, the landlord? Without such consent, any attornment of the tenant was void. $31.

H. & H. 349,

6. Further, had defendant's documentary evidence been ad mitted, it would have availed nothing, in itself considered. Unless there had been also proof, that the defendant "disclaimed holding of the plaintiff, and entered afresh under the new landlord," the result must have been the same. Balls v.

Westwood, 2 Campb. 11.

And it is well settled, that a new trial will not be granted for the improper exclusion of testimony, when it is apparent that, had the testimony been admitted, the result would have been the same. McMullen v. Mayo, 8 S. & M. 298; Barringer v. Nesbit, 1 Ib. 22.

And as the testimony offered was irrelevant, except as connected with the further testimony of a disclaimer and fresh holding, on the part of defendant, and no such further evidence was offered or attempted to be shown, it was properly excluded as both irrelevant and inadmissible. For, say this court in a recent case, "Where testimony is offered and excluded, and such exclusion is excepted to, it must be shown affirmatively, during the trial, that such testimony was relevant and pertinent." Torrey v. Fisk, 10 S. & M. 590.

Mr. Justice CLAYTON delivered the opinion of the court.

This was a case of unlawful detainer. A tenancy of the defendant, under a letting from the plaintiff, is very clearly made out. It was not competent, therefore, to the defendant, to object to the want of right of possession or of property in the plaintiff. Having admitted the right by accepting the lease, she was estopped from denying it, at least, until she had surrendered the possession, and placed the plaintiff in the same situation