The opinion of the court was delivered, May 20th 1868, by

The evidence in this case Was very clear that the improvement upon the land was begun by Joseph Thomas, who sold to Henry Boyer — that Boyer went into possession, finished the house, and lived on the land; that he sold or leased his interest to George Anderson. Boyer’s contract not being complied with to Thomas, the latter brought his action of ejectment against Anderson in 1852, and recovered an award under the Compulsory Arbitration Law on the 20th May 1854, which was not appealed from. While that ejectment was pending, viz., January 10th 1853, and while he was yet under Thomas’s title, Anderson undertook to convey his title to Anthony Smith, under whom the plaintiff below claimed title. The title set up by the plaintiff was founded upon an alleged abandonment of the settlement of Boyer under Thomas’s improvement, and a new settlement begun by Anderson on his own account, and the case was submitted to the jury on this question of fact. It was in proof by Thomas, who was called by the plaintiff, that he sold the property to Henry Horn while Anderson was in possession, and four or five years before the deed of 24th March 1859; and in a nota bene to *51the deed itself it is stated that the agreement for the sale was made in 1854. This is corroborated also by the testimony of Henry Darr. Now, under these circumstances it was important for the defendant, who claimed under the title of Thomas and Boyer, to show that Anderson, who was in under Boyer, and did not leave the property after the recovery in the ejectment, continued in possession under Horn, who had become the owner of Thomas’s title in 1854, the same year of the recovery. The defendant offered in evidence a lease from Horn to Anderson, dated the 29th December 1854, which was rejected by the court, on the ground that Anderson had already parted with his title to Smith. But clearly this was error. Smith bought of Anderson with notice by way of Us pendens. Anderson was still in possession under Thomas’s title, and never yielded it up. Horn, Avho held the title then, had a right to show that he never abandoned the land, hut, on the contrary, that it had continued in the possession of his tenant from 1854. The effect of the exclusion of the lease was to leave Anderson in effect the tenant of his grantee Smith, and to place Horn in the attitude of having abandoned the land from 1854. It is quite probable the learned judge overlooked the time of the inception of Horn’s title, and referred it to the date of his deed in 1859. But the judgment must he reversed for the refusal to receive the lease in evidence.

Judgment reversed, and a venire facias de novo awarded.