Barley v. Barley , 1 Va. Dec. 103 ( 1877 )

Christian, J.,

delivered the opinion of the court.

The court is of opinion that the circuit court erred in excluding from the jury the evidence offered by the plaintiff tending to show that Wm. H. Barley and not Jacob Barley was the owner of the land, for the rent of which the bond sued on was executed, and that the said Wm. H. Barley was in fact the lessor of the obligor Samuel Barley. Under the defense of eviction set up by the defendant, the evidence offered was proper evidence to go to the jury. If it be true, as was offered to be proved by the plaintiff, that Wm. H. Barley and not Jacob Barley was the owner of the land at the time of the contract of lease, and that said . contract of lease was in fact made by Samuel Barley with Wm. H. Barley, and that the bonds for the yearly rent were at first executed and delivered to Wm. H. Barley and were not accepted by him only because he objected to the sufficiency of the security, and that afterwards the bonds were delivered in the absence of "W m. EL Barley to Jacob Barley and assigned by him to Wm. EL Barley — if all these facts had been proved, then it would be a manifest and palpable fraud upon the rights of Wm. H. Barley to permit Samuel Barley to treat Jacob Barley as his landlord when in fact he was the. lessee of Wm. H. Barley and to prevent him from relying upon proof of acts on the part of Jacob Barley as acts constituting eviction, with which Wm. H. Barley is .in no view connected and for which he is in no way responsible.

The court is therefore of opinion without passing upon any other question in the case, and it is therefore adjudged and decreed that for this error of the said circuit court in excluding the evidence offered by the plaintiff tending to prove the aforesaid facts, that the judgment of the said circuit court be reversed and annulled, that the verdict be set aside and a new trial awarded, and that upon such new trial the same or similar evidence, if offered by the plaintiff, shall be permitted to go to the jury. And it is further adjudged and ordered that the plaintiff in error recover against the defendant in error, Samuel Barley, his costs by him expended in the prosecution of his writ of error and supersedeas here. All of which is ordered to be certified to the said circuit court of Rockingham county.