#### WOODS’ LESSEE v. PINDALL.

Ejectment — possession—fraud—'drunkenness—procured by grantee.

The defendant in possession may defend the possession until a better legal tide is produced. Testimony inadmissible to the jury may be heard by the Court to prove the loss of a paper. Where evidence tends to prove the plaintiff’s case, a non suit will not be ordered,

intoxication procured by the grantee of a deed to influence its execution, makes the deed void, unless executed when the grantor was sober; but habitual drunkenness of the grantor of a deed, not procured by the grantee, will not affect it. /

*M. Marshall*objected,

that the witness was interested, being the grantor and warrantor of the plaintiff.

*Marshall*

moved for a non suit, on the ground that there was no evidence to sustain the plaintiff’s right, or showing an uninterrupted possession, nor a clear paper title. It was incompetent for the plaintiff to eke out his paper title by parol pi’oof.

Ejectment for a piece of land. The plaintiff pmvbd the possession of one Masterton, before that of the defendan^fnd a deed of conveyance from him to the lessor of the plaintiff, then called Masterton to prove *to the Court*the destruction *¿f*a title bond given, by him to Pindall, which was assigned to the plaintiff’s lessor, and under which he gave the deed to Woods.

By the Court.

The testimony is directed to the court, and not to the jury, and we will hear it.

The witness testified that the bond given by him to the defendant for a deed, was assigned to Woods, and surrendered when the deed was made. He gave it to a boy to write upon as waste paper, and it was destroyed.

It was proven that Pindall said he held under Masterton, and was still in possession, and there the plaintiff rested.

Wright, J.

The evidence conduces to prove the plaintiff’s title, and must go to the *jury.*

The defendant then offered evidence to prove his own general habit of intoxication. The plaintiff objected.

*508Wright, J.

You may prove fraud in obtaining the deed, as that would make it void. The general habit of intoxication, unless it is expected to connect it with the plaintiff’s lessor, will not avail. We suppose the plaintiff will admit the defendant generally drunk, if desired, as that will save time, and then, if there be evidence that he was made so by the lessor of the plaintiff, and executed the deed under such influence, it may avail. Unless it is proposed to do that, it will be useless to proceed, as we must instruct the jury, that under other circumstances *the*drunkenness will be of *no*avail.

A number of witnesses were then examined upon that point.,

Wright, J.

to the jury. The defendant being in possession of the premises in dispute, has a' legal right to remain, except a *better*legal right is shown in the lessor of the plaintiff to take the possession from him.

If the proof satisfy you that Pindall entered into the possession under a contract with Masterton, (made when he was in possession,) though he show no contract or title, he will be presumed Masterton’s tenant at will. A tenancy at will would be terminated by the conveyance to Woods, which transferred to him the legal estate, that would establish the plaintiff’s right to your verdict, unless the evidence for the defendant shall establish such fraud in procuring the deed, as makes it void. It is sought to vitiate the deed upon the ground, that it was obtained upon an assignment of a man made drunk by the assignee, in order to obtain it. Should you find this allegation proven, the deed is void; you will consider the case as if none had ever been made from Masterton: but if the pr.oof only goes to satisfy you that Pindall was habitually a drunkard, without being made - so by Woods to procure the assignment, or if, in fact, the assignment was not made by Pindall when drunk, the defence fails.

Verdict for the plaintiff.