delivered the Opinion of the Court.
The proof, on the trial of this case of forcible detainer, was, that Elms entered as tenant under Randall; refused to restore the possession to him, and claimed to hold under a contract with Breckenridge, or under his permission to occupy. Under this proof, as Elms could not legally attorn to Breckenridge, there can be no doubt that the verdict and judgment were correct.
Elms, however, offered to prove, that Breckenridge had been long possessed of the premises, and had leased them to Gibbins for a term which had expired before the suing out of the warrant; that Gibbins had sold out his lease to Randall, who, after purchasing from Gibbins, set up a title in himself, independent of and adverse to that of Breckenridge. The court would not permit Elms to prove these facts, and he excepted, and now assigns for error, the rejection of the proof.
It ought to have been admitted. If Breckenridge leased to Gibbins, and if Randall came in under Gibbins, as purchaser of his term, then Randall was the subtenant of Breckenridge, and could not lawfully assert an independent title, so as to make his possession adverse to Breckenridge. If, in this state of case, Randall put Elms into possession for the residue of the term of Gibbins, or even after the term had expired, Elms would hold in the same manner that Randall, his lessor, held : to wit, under the title of Breckenridge; for Randall cannot change the nature of his possession, acquired under the contract with Gibbins, by transferring his possession to a tenant. Under this view, the possession of both Randall and Elms is the possession of Breckenridge. Now, if Breckenridge, after the expiration of
The evidence offered was improperly excluded, be: cause it might have shewn such a state of facts as would have authorized the'jury to find for Elms.
Wherefore, the judgment is, reversed, with costs, and the cause remanded for a new trial.