The opinion of the Court was delivered by

If the testimony given by the two Gillespies and objected to by the counsel of the defendants below was properly admitted by the court, the plaintiffs here have no ground to complain. The testimony was not received for the purpose of showing that the lease from Tate to Carson Gillespie was different from or contradicted that which was reduced to writing between them. The lease was but for the term of one year, and the testimony was admitted to show the extent of the possession taken under it. But admitting that, as reduced to writing, it included the whole of the Henry tract of land, the parol evidence objected to only went to show that the parties by their conduct subsequently and a verbal understanding between them, modified the occupation under the lease so as to exclude that'part of the Henry tract in dispute, and for the reason too that the defendants had tortiously taken possession of it, and would not give it up until forced to do so by legal process. As the lease was only for a year, it was competent for the lessees to make a verbal surrender of it at any time during its continuance, or to surrender a part thereof, and hold the residue by the consent of the lessor, or they might have made a verbal assignment of it to a third person, without interfering with the Act of Assembly against frauds and perjuries, which requires it to be in writing only where the interest intended to be passed or transferred in lands exceeds the term of three years. I concur entirely with what is said by the Chief Justice on this point in *94M’Kinney v. Reader (7 Watts, 123-4). The testimony of the Gillespies shows that they gave up all interest which they might have claimed in the land in question under their lease as reduced to writing, could they have got the possession of it. The lessor, the plaintifF below, it seems was willing that they should have had the possession of the whole tract, and would have delivered it, but was prevented by the plaintiffs in error, who had wrongfully taken the possession of the part sued for in this action, and refused to give it up. Hence the plaintiff below, in order to possess himself of his right, was compelled to sue them. They having thus prevented the lease, so far as it may have embraced the land in dispute, from being carried into effect, so as to vest in the lessees the right and interest intended, are the last in the world that ought to be permitted to set it up as an outstanding title against the plaintiff below, in order to defeat his recovery of land that otherwise he is justly entitled to. It would in fact be permitting them to take advantage of their own wrong. But the evidence objected to showed that the lessees did not claim to hold, at any time, the land in dispute under the lease which they had taken, as the defendants held the possession of it and would not give it up. Any interest which the lessees might have claimed under the lease, being only for one year, was such as they could give up to their lessor verbally, notwithstanding the lease was in writing, and under the seals of the parties; and having done so, the plaintiffs in error could not claim to defeat the recovery of the defendant in error by means of it as an outstanding title.

Judgment reversed, and a venire de novo awarded.