¶1Opinion by
¶2This action of ejectment resulted in a verdict for the plaintiff, which the court refused to disturb by granting a new trial. Both parties claim title under Thomas E. Dougal, who died in 1910, this action being brought February 12, 1912. The plaintiffs’ claim under a deed dated August 6, 1901, and duly recorded, from Moore and wife and Thomas E. Dougal and wife. The defense was an undated, unrecorded agreement, between Thomas E. Dougal and the defendant, alleged to have been made in 1902 or 1903, through which the defendant obtained possession of the premises in dispute. On the trial certain testimony offered by the defendant, Geo. E. Woods, was excluded for the reason that he was a party to the action, and his alleged grantor being dead, under clause E, Section 5, of the Witness Act of 1887, he was incompetent. There was a subsisting obligation on the estate of Thomas E. Dougal, under the general warranty in his deed to David Wilbur Dougal, and the testimony offered would be adverse' to the right of such estate. The interest of Thomas E. Dougal in the land had passed by proper conveyance to the plaintiff, and the testimony of the defendant was clearly within the class which is prohibited by the Act of 1887, as that of .a surviving party to the thing in contract. The testimony offered was competent, but the witness through whom it was offered was incompetent, and it was rightly excluded.
¶3The case was carefully tried, and fairly submitted to the jury with reference to the agreements between Thomas E. Dougal and the defendant, the character of *175his possession, and the repairs or improvements made by him. The fugitive conversations on which the defendant relied were very far from convincing, and we do not feel that the after discovered evidence was of such a degree as to have justified the court in granting a new trial. We do not find any reversible error in the record, and the judgment is affirmed.