delivered the opinion of the Court.

This is an ejectment. The lessor having proved title, on the trial, the defendants proved facts conducing to show that they had entered .and continued to hold under executory contracts of purchase from the lessor: and thereupon the circuit court instructed the jury to find as in case of a non-suit, because the plaintiff had not proved any notice to quit prior to the institution of the suit; and a verdict and judgment were rendered for the defendants accordingly.

As the jury, and not the court, had the right to ascertain the fact of sale, and of entry and possession under it, and as the plaintiff had not proved or admitted that fact, the court erred in giving a peremptory instruction to find for the defendants.

Wherefore, though the princinle recognized in the instruction may he correct, the judgment must be reversed and the cause remanded for a new trial.