#### Jones and Another *v.*Doe, on the Demise of Perdue’s heirs.

In ejectment, *A.*and *B.*were admitted defendants, the former as tenant, the latter as landlord. *Held,*that *A.*was precluded by his appearance as *B.’s*tenant, from afterwards showing that he was the tenant of the plaintiff’s lessor, and entitled to notice to quit.

APPEAL from the *Clark*Circuit Court. — This was an action of ejectment by the appellee against the appellants.

Holman, J.

The declaration in this case was served on Whitson, as tenant in possession, and he, together with Jones, was admitted to defend, by an order in these words: “On the motion of *Thomas*Whitson, tenant, and *Leonard*Jones, landlord, they are admitted defendants in this *action.” A*bill of exceptions informs us that the plaintiff proved at the trial, that *Jesse*:Perdue, ancestor of the plaintiff’s lessors, entered into possession *352of the premises in the year 1813, and that afterwards, in the same year, *Whitson*entered into possession by virtue of a parol lease from said *Perdue*for eight years, and that *Whitson*had continued in possession ever since: whereupon the defendants moved the Circuit Court to instruct the jury, that it was necessary for the plaintiff, in order to maintain his action, to prove a notice to *Whitson*to give up the possession of the premises, pri- or to the commencement of the action; which instruction the Circuit Court refused to give. Judgment was given for the plaintiff, and the defendants have appealed.

The defendants, taking it for granted that the parol lease was void, and that *Whitson*was to be considered as a tenant at will, contend that he was entitled to notice to quit, which notice should have been proved on the trial. But *Whitson*does not appear in the case as tenant to the plaintiff’s lessors, but as tenant to *Jones. Whitson*and *Jones*are admitted to defend in the character of tenant and landlord, and as they assume that character in their defence, it must be presumed that they claim it in relation to each other; and that they, as tenant and landlord, are jointly interested in maintaining the possession of *Whitson,*as tenant of *Jones.*If such be the connexion between *Whitson*and *Jones, Whitson,*by his own showing, does not appear before us as the tenant of the plaintiff’s lessors, and was not entitled to notice to quit. Whether he was in reality the tenant of *Jones,*or ever had attorned to him, is immaterial. By entering as defendant in that character, he undertakes to defend the title of *Jones,*and rests his claim to the possession on that title; and of course disclaims any privilege to which he would be entitled as the tenant of *Perdue’s*heirs. Whether *Whitson*disclaimed holding under the heirs of *Perdue,*prior to the commencement of the action, is also immaterial; for the plaintiff is not bound to prove more than his case requires, as it stands at the trial. He has a right, at that time, to avail himself of any denial-or-admission of the defendant; and if in this case the plaintiff had considered *Whit-son*as the tenant of his lessors, and had given him notice to quit the possession, he would not have been bound to prove that notice on the trial, inasmuch as *Whitson,*by coming in as tenant of *Jones,*abandoned every advantage he might have had as tenant of the plaintiff’s lessors. So that the instruction required would have been improper, and was correctly refused.

*Per*Curiam.

The judgment is affirmed with costs.

*353
      *Howh*and *Dewey,*for the appellants.

*Thompson*and *Naylor,*for the appellee.