(after stating the case). A verbal contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, is good between the parties, to it, and will be enforced, if they agree upon its terms, and the party to be charged does not plead the statute. Green v. Railroad, 77 N. C., 95. In controversies between them, the rule is, that where the plaintiff declares upon a verbal promise void under the statute of frauds, and the defendant either denies that he made the promise, or sets up another and different contract, or admits the promise and pleads specially the statute, the contract cannot be enforced. Holler v. Richards, 102 N. C., 545.
The agreement between James Thigpen and the feme plaintiff, C. A. Thigpen, that she should support him during his life, in consideration of receiving the rents of the one-hundred acre tract of land for the same period, is good inter partes. If it be conceded, that a stranger would be allowed to set up the plea, that such a contract is void, where the law casts the burden on the party, claiming the benefit of it,. *43to show a good title against such stranger, the admission would not affect this case.
The feme plaintiff holds the remainder, after the life estate of James Thigpen, by deed from him, and, with the agreement already stated, she lived upon the land with him and her husband T. L. Thigpen. She alleged in the second paragraph of the complaint, that she was the owner of the crops, not by virtue of the title set out in the first paragraph, but as an independent fact, and the allegation being denied, the Court properly submitted a distinct issue as to her right to the crops. It was competent to show the parol contract between plaintiff and James Thigpen, in order to establish her right to the growing crops. It was material, as evidence, that she entered on the land and was-cultivating it under a license from James Thigpen, and was entitled to the growing crop on that tract. The fact that she entered under the authority of James Thigpen, was evidence tending to show she was his tenant. Medlin v. Steele, 75 N. C., 154.
She had not declared in the second paragraph of the complaint how she derived her title to the crop, but had simply claimed that she was owner, and had the present right to the possession, and this was a separate and distinct allegation, in no way connected with her claim of title to several tracts of land by virtue of deeds mentioned in the first paragraph. There was, therefore, no variance between the allegation and the evidence offered.
There was error in the refusal of his Honor to allow the witness to testify, as was proposed, for which a new trial will be granted.
Error.