delivered the opinion of the court,

The Act of 15th April 1869 does not apply to actions where the assignor of the thing or contract in action may be dead. If Bill-man were an assignor within the sense of the statute, as to matters which occurred in his lifetime, the competency of Titus to testify would be determined by rules that existed before its enactment. Where the subject of the action is a contract, it is obvious that a deceased party thereto, whose rights have passed to one of the parties in the action, is an assignor in the intendment of the proviso,, as clearly so as if the suit were by or against an executor. Then it is easily seen that the case is within the true spirit of the proviso which has been said “ to be that where a party to a thing or contract in action is dead, and his rights have passed, either by his. own act or that of the law, to another, who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now closed:” Karns v. Tanner, 16 P. F. Smith 297. But when the subject of litigation is real estate, it often seems difficult to decide if the act applies; yet the spirit and reason of the law will as surely guide as if the subject were a contract. A grantor of the title on one side may be dead; if he had no transaction or communication of any kind with the adverse party, or one under whom he claims, he is not an assignor in the meaning of the statute. Where there was no privity between the deceased assignor and the opposing party, as a general rule the act •applies. The converse is equally true, if nothing occurred in the lifetime of the deceased between him and the survivor, the case is unlike one where the subject is a contract. The decisions accord with the rule stated. In Karns v. Tanner, supra, the pivotal question was the validity of a lease, which Parker, one of the defendants, had given to James P. Tanner, whose title after his decease had become vested in the plaintiff. So in Arthurs v. King, 3 Norris 525, each parity claimed the land under Zimmerman; Arthurs by deed from Zimmerman’s executor; King under a deed executed by Zimmerman in his lifetime to Baseom, in pursuance of a parol contract with Boyer, as alleged. Held that Boyer and Baseom were incompetent to prove the contract and delivery of the deed. The privity between the decedent and adverse survivor, in each of these cases, is manifest. In the latter, Sterrett, J., said: “ In construing the act, it has been held that where one of two parties to a transaction is dead, the survivor and the party representing the deceased stand on an unequal footing as to the knowledge of the transaction occurring in the lifetime of the deceased. The proviso was intended to exclude parties to the transaction from being witnesses in regard to it when the opposite party is dead and his rights have become vested in others, by his own act or by ope*464ration of law.” Craig v. Brendel, 19 P. F. Smith 153, decided in less than a year after Karns v. Tanner, illustrates the principle where privity was not an element. Craig purchased the land at sheriff’s sale as the property of Brendel, brought ejectment, died, and his devisees were substituted. Brendel never claimed title; it was in his wife; and he was held a competent witness. After referring to Karns v. Tanner, Agnew, J., said: “It will be observed that there Parker and Tanner stood in the relation of opposing parties to the same, matter or contract of lease, and also in relation to the thing itself which was the subject of their contract or lease.” “But the present case is essentially different. While it may be considered as true that John Craig, the devisor of the plaintiffs, is their assignor in law, according to Karns n. Tanner, yet Frederick L. Brendel, the defendant here, who was offered as the witness, does'not stand p.s the party opposite to them in the thing or transaction which is the subject of the controversy in this suit.” We need not note the remarks in effect that Brendel was competent and his wife not; the gist of the reason for Brendel’s competency was absence of privity of any transaction between him and John Craig relative to the land in controversy. He was not called to testify to anything that had occurred between him and Craig, and could not have been, for nothing had passed between them.

Samuel Titus, one of the defendants, ivas offered as a witness, in his own behalf, to prove such actual possession as had vested title in himself, and was excluded for incompetency, “ because Daniel Billman, whose estate still holds the legal title, as shown, by the plaintiffs in this suit, is dead, having in his lifetime conveyed only an equitable interest to the parties.” The first thing that arrests attention is the absence of privity between Billman and Titus. There is no semblance of contract relation. Nor are their respective titles links of the same chain. Before Billman had an interest in the Brady tract, while he lived, and since his death, Titus claimed the land in suit as part of the Hepburn warrant. The plaintiffs, holding under Billman and others, demand nothing beyond the Brady survey. Aside from location of the original tract line, Titus sets up title under the Statute of Limitations, the very nature of which excludes its derivation from Billman. There was no proposal to prove by Titus anything that Billman ever said or did, and plaintiffs point to nothing tending to show that there ever was any communication between them respecting the land. If the survivor is incompetent, where will competency begin when some grantor in the chain of title of the opposing party is dead ? Can it be that if one party derives title through or under a deceased grantor, however remote, neither can be a witness ? Proximity or remoteness of the deceased grantor is of no consequence, for the true inquiry is, has death sealed the lips of one party to a *465..transaction of which both had knowledge ? The proviso was not intended to exclude a party in such a case as this, and we are of opinion there was error in rejecting the offer set forth in the eleventh assignment.

•To understand the evidence, and rulings of the court, it must be kept in view that, since May 1st 1832, Wilson and those under him have had .the deeds for that part of the Hepburn tract adjoining the Brady; that Titus owned no land adjoining that in dispute; and that the land in suit was unimproved and unenclosed woodland, except a fraction of an acre at one end enclosed to extent its occupant claimed. The learned judge was clearly right in his instructions to the jury upon the evidence before them, and none of the assignments of error relating to the charge and answers to points can be sustained.

Judgment reversed, and a venire faeias de novo awarded.