#### STEPHEN B. FORBES, v. THOMAS WILLIAMS.

Where the lessee of a lot, for a term of years, covenanted that he would not remove off of the lot any building whieh he might put thereon, until the rents were paid; and a building put thereon during such lease, was removed by a third person, by the consent of the lessee, the rent being unpaid: Held, that such third person was liable in damages to the lessor for such removal. Held, further, that the lessee was a competent witness for the lessor, against such third person.

Action on the Case for an injury to the plaintiff’s freehold, tried before his Honor, Judge Ellis, at the Spring Term, 1854, of Craven Superior Court.

The plaintiff was the owner of the freehold of a lot in the town of New-Berne, and leased the same to one French, for the term of five years; and during the term, the defendant removed from the lot, and appropriated to his own uses, a house situated thereon, for which the plaintiff alleged “ that the security of the plaintiff was impaired, and he was damnified to the extent of the *394rent due upon the lease.” The plaintiff was the owner in fee of the lot in question lying in the town of New-Berne, and leased the same by deed to one Henry French, on the first day of March, 1848, for the term of five years. This deed-was offered in evidence, and objected to by defendant, but Was received by the Court. One of the covenants in this deed is as follows : “ The said Henry E. French, for themselves, their heirs, executors, administrators and assignees, doth covenant and agree to and with the said Stephen B. Forbes, his heirs, executors, administrators and assigns, that they will not remove off any building or buildings, that are or may be put on the said lot of ground until the rents are fully paid and satisfied.” French built a house upon the lot after he took possession, and after-wards sold it to the defendant, who removed it from the lot before the expiration of the lease, to wit, in March, 1849, the rents remaining unpaid, and which have not since been paid, except for the first year, which was paid by the defendant. These facts were proved by French, who was objected to by the defendant, as incompetent, on the ground of interest, but he was admitted by the Court.

The plaintiff only claimed damages to the amount of the rent which was in arrear. Upon these facts, the defendant contended that the plaintiff could not recover, and requested the Court so to instruct the jury; but his Honor being of a contrary opinion, refused so to instruct. His Honor charged the jury, further, that the rule of damages was the value of the house; but in case this value exceeded the amount of rent due, they should give no more than that sum, as that was only the amount claimed by the plaintiff. The jury found a verdict for the plaintiff.

Rule for a *venire de novo*for the admission of improper testimony, andfor misrdirection by the Court. Rule discharged and appeal.

*J. R.*Bryan, for plaintiff.

*Gfreen,*for defendant.

*395Nash, C. J.

We concur with bis Honor in tbe opinion given in tbis case. The deed containing tbe lease from tbe plaintiff to French was competent evidence, and French himself a competent witness for tbe plaintiff. Tbe case states that tbe lot, from which tbe bouse was removed, was owned in fee by tbe plaintiff; the act of removing tbe bouse from it by tbe defendant was a tort to be remedied, ordinarily, by an action of trespass *vi et armis;*but tbe plaintiff could not bring that action, because French, at tbe time it was committed, was in tbe actual possession of tbe lot, under* a lease from him. Tbe lease, therefore, itself, was pertinent evidence to show tbe illegal nature of tbe act complained of. Again, it was competent, if not necessary evidence to show, that, at tbe time tbe defendant removed tbe bouse, neither he nor French, tbe lessee, bad tbe right to do so. Tbe lease to French was for five years, commencing tbe first day of March, 1848, and ending tbe first day of March, 1853. Tbe lessee covenanted, that no building then on the lot, or which should thereafter be put upon it, should be removed off tbe lot “until tbe rents are fully paid and satisfied.” This covenant ran with tbe lease, and extended to tbe last moment of it. The house was removed, in 1849, four years before tbe expiration of tbe lease. To show the terms of tbe lease, it being reduced to writing, tbe deed itself was necessary evidence, so far as it was necessary to show those terms. French was a competent witness for tbe plaintiff, but not a necessary one. French had covenanted not to remove any house from the lot, until tbe rents were fully paid. What be could not legally do, bis vendee could not legally do. Tbe defendant purchased tbe building, subject to tbe restriction laid upon bis vendor; and to mate the removal of the house legal at any time, tbe burden of showing that tbe rents were fully paid, devolved on him. It was not therefore necessary, on the part of tbe plaintiff, to have introduced French in tbe first instance; but be had a right to do so. Again, the bouse was treated both by French and the defendant as personal property, and in every sale of personal property, tbe law implies a warranty of title by tbe vendor; *396and, therefoi’e, the vendee has, generally, a right of action against the vendor, if the latter has no title. Admitting, then, that the defendant had no notice of the covenant, on the part of French in his lease, but that he purchased in good faith, believing that he had a right to sell the house, then French would have been answerable to him for the full amount of the damages he might sustain by reason of the breach of his implied warranty. But French is also liable to the present plaintiff, his lessor, to the full amount of the damages sustained by him, in consequence of the breach of his covenant; and in each case, ordinarily, the measure of damages would be the same. French, therefore, having an interest on both sides, stood indifferent between them, and was a competent witness. The question as to the right of lessees to remove buildings erected to carry on trade does not arise in this case. French, the lessee, bound himself by express covenant, to remove no building until the whole rent was paid, and the case states that the rent was in arrears and the covenant allows him to remove any house he should erect after the expiration of the lease.

There is no error in receiving the testimony,objected to, nor in the charge.

Judgment is affirmed.