#### DOE ON THE DEMISE OF HUGH McAULAY, v. CALVIN EARNHART.

Whether the tenant in possession is the tenant of the defendant, or of one as whose land the premises in controversy ad been sold, by virtue of a judgment and execution, at a Sheriffs sale, is a question of fact, which is to be submitted to the jury, and the deeds under which the defendant entered, are clearly admissible on that subject.

Where a paper is proved to bo destroyed, its contents may bespoken of without any notice to the other side to produce it.

Evidence of “ a family arrangement,” to defraud creditors by giving off other lands, than the tract in dispute, to other sons as they arrived of age, it not being shown that the father was in debt at the time of the conveyances, is not admissible on the question of fraud.

This was an action of Ejectment, tried before his Honor ¿fudge Ellis, at the Fall Term, 1852, of Cabarrus Superior Court.

The plaintiff’s lessor claimed title from one Solomon Earn-hart, sr., the father of the defendent, and showed in evidence Several judgments and executions against the said Solomon, sr., a levy upon the premises in question, a sale and Sheriff’s deed for the same.

A witness was then called for the plaintiff, who testified that the defendant was the son of Solomon Earnhart, sr., and living with him on the land at the time of the sale to plaintiff’s lessor, and that on the day after the sale, the father left the y remises, leaving the defendant in possession, and was in the habit of returning and taking part in the management of the farm and workshop.

The defendant claimed title as the tenant of one Solomon Earnhart, jr., another son of the defendant in the exucution, who claimed title by a deed of bargain and sale from his brother, one John M. Earnhart, who claimed by a similar deed from Solomon, sr. This deed was dated in 1848, and that from John M. to Solomon, jr., in 1844. The plaintiff objected to the introduction of these deeds, upon the ground that the defen*503dant was estopped from setting up any defence which the defendant, in the execution could not set up, as the defendant went in under him. The objection was oYerruled, and the evidence admitted, to which the plaintiff excepted.

The conveyance from Solomon, the father, to John M. Earn-hart, was attacked for fraud, and many witnesses examined.

To rebut this evidence, the defendant introduced John M. Earnhart, who, in the course of his evidence, stated, that the deed from himself to his brother, Solomon, was made in consideration of a note for $1200, which was afterwards paid off and destroyed. The plaintiff objected to his speaking of a note, unless he produced it. The evidence was admitted by the Court. Plaintiff excepted.

The plaintiff then offered to prove the fraud alleged, by showing that there was a family arrangement, whereby Solomon, sr., gave other tracts of land to other sons, as they came of age, contending, that the plan for defrauding his creditors was pre-concerted between the said Solomon, the father, and his sons.

The evidence was objected to and rejected by the Court, for which plaintiff ■ excepted.

There was a verdict and judgment for the defendant, and appeal for error in the masters excepted to by the plaintiff.

*Wilson, Barringer*and *Bynum,*for plaintiff.

*Osborne*and *Boyden,*for defendants.

Battle, J.

The only questions raised upon the trial, relate to ■to the admission and rejection of testimony:

1st. Both parties claimed under Solomon Earnhart, sr., the father of the defendant; the lessor of the plaintiff, as a purchaser at sheriff’s sale, under a judgment and execution; the defendant as tenant to his brother, Solomon Earnhart, jr., who was alleged to be a purchaser by deed, dated in 1844, from his brother John M. Earnhart, who claimed under a deed, dated in 1848, from his father, the said Solomon, the elder. Both these deeds were prior to the time when the plaintiff’s lessor acquired *504title; but be contended that Solomon, tbe elder, was tbe actual occupant of tbe land in question, and that tbe defendant was bis tenant, and could not set up any other title as against tbe lessor, and he introduced testimony, tending to show such tenancy. To rebut this proof, the defendant alleged that be was the tenant, not of bis father, but of his brother, Solomon, tbe younger, and offered tbe deeds above mentioned, to show bis brother Solomon’s title, together with testimony tending to show bis tenancy under bis said brother. Tbe deeds and other testimony were objected to, but were, as we think, properly admitted by tbe Court, for "the purpose indicated. Tbe question of tenancy was certainly one of fact, which was to be ascertained before tbe rule of law, insisted upon by tbe lessors, could apply. The testimony introduced by tbe lessor, to show that tbe defendant was the tenant of bis father, could not conclude the defendant from introducing testimony to contradict it, and show that, in truth, he was not tbe tenant of his father, but of his brother. The deeds were certainly admissible, to show that his brother had the prior and preferable title from his father, under whom both parties claimed.

2. The witness had undoubtedly a right to speak of the con- • tents of the note of $1200, without producing it, because he swore that he had paid it off, and destroyed it. Robards v. McLean, 8 Ired. Rep. 522.

3. The testimony proposed to be offered by the lessor of the plaintiff, to show that Solomon Earnhart, sr., with the view to defraud his creditors, executed deeds to his sons, as they successively come of age, for different portions of his land, was inadmissible, for the reason that it does not appear that, at the time when they were executed, he had any creditors to be defrauded. The bill of exceptions does not set forth a single debt which Solomon Earnhart, the elder, owed at any time, except the one upon which the judgment and execution were obtained, under which the lessor purchased, and it no where appears when that was contracted.

*505We can see nothing, therefore, to show that the Court was wrong in rejecting the evidence. Being unable to find any error in the record, we must affirm the judgment.

Judgment affirmed.