William P. Grimsley and Laurison Levering, appellants v. Joseph Klein, appellee, 1 Scam. 343

Wilson, Chief Justice, delivered the opinion of the Court: This was a trial of the right of property. During the progress of the trial in the Court below, several exceptions were taken to the opinion of the Court, which are also assigned for error here. None of the exceptions, however, are considered well taken, except that which relates to the reading in evidence of a paper purporting to be a lease from Klein, the appellee, to one Bailey. The record shows that Klein as the landlord of Bailey, distrained the goods of Bailey for rent due.

Those goods were afterwards taken in execution at the suit of Grimsley and Levering, and upon the trial of the right of property between Klein, the landlord, and Grimsley and Levering, the execution creditors, Klein, in order to prove the indebtedness of Bailey to him for rent, and his right of property by virtue of his distress, was permitted to read in evidence, without any proof of its execution, a lease from him to Bailey.

The reading of the lease was objected to by the counsel of the appellants, but the Court overruled the objection, and after hearing all the testimony in the cause, gave judgment in favor of the appellee. Upon what ground the introduction of the lease as evidence in the case, was sought to be excluded, does not appear from the bill of exceptions; but inasmuch as it professes to contain all the testimony given in the cause, and as there appears to have been no proof of the execution of the lease, we are bound to say that the Court erred in overruling the motion to reject it.

Under the statute a party to a written agreement upon which suit is brought, or which is relied upon by way of defence, or set-off, cannot deny its execution except under oath. This statutory provision, it is clear, is not applicable to the present case. The appellants’ names were not signed to the lease, nor were they any way privy to it; they therefore had a right to require proof of its execution; and the party offering it was bound to make such proof before it could be legally given in evidence.

For this reason, the judgment of the Court below is reversed, the cause remanded with an order for a venire de novo, and that the Court proceed according to this opinion. Judgment reversed.