There is error. The principle upon which His Honor ruled out the evidence of the defendants (Crocker and Stephenson) has no application to this case. Under the former practice it was a well settled rule that when a landlord was let in to defend an action of ejectment, he stood in the place of the tenant, and could make no defence which the tenant could not have made. Wiggins v. Riddick, 11 Ired., 380; Belfour v. Davis, 4 Dev. & Bat., 300. But where, a defendant is let in to defend such an action by consent, he is not restricted to the defence of the party in possession, upon whom the process was originally served, but any defence he can make is open to him. Wise v. Wheeler, 6 Ired., 196, and Lee v. Flannagan, 7 Ired., 471, in which case Ruffin, C. J. said : “ We had occasion to look into this question in Wise v. Wheeler, and held that when the tenant in possession makes default, and another is let in by consent to defend, upon admission of actual possession in that person, it must be understood, that it was the object of those parties to try the title between themselves at once without the delay or expense of a new suit.” These cases were decisions under the old practice.
Since the adoption of the Code it has been held in the case of Isler v. Foy, 66 N. C., 547, that under the provisions of the Code, § § 61, 65, a landlord let in to defend in a civil action for the recovery of land, is not restricted to the defences to which his tenant is confined, nor is this principle varied by the circumstance that the plaintiff is the purchaser at execution sale against such tenant, and that the latter was in possession at the date'of the sale and of the commencement of the action. There is no conflict between that case and Whissenhunt v. Jones, 78 N. C., 361. The main questions in that case turned upon the points of notice and damages — whether the want of notice to leave to the original defendants, who were tenants, could be taken advantage of by those who were allowed to come in and defend the action, and whether the *386damages were to be assessed to the commencement of the action, or up to the trial.
There was error in the ruling of His Honor in rejecting the evidence offered by the defendants, and they are on that account entitled to a new trial.
This will therefore be certified to the court below to the end that a venire de novo may be awarded.
Error. Venire de novo.