that the other plaintiffs were not owners, by showing that the witness had so stated in a legal document signed and verified by him as manager and agent in some former proceeding concerning the property, in which case an injunction was issued to restrain a trespass upon the Maid of Erin claim upon the complaint so signed and verified; but the court would not permit it to be done. An examination of the questions asked the witness, which the court did not permit him to answer, will show that none of the testimony sought went to any issue in the case, was not directed to anything in his direct testimony, and was not legitimate cross-examination. Many of the questions were in regard to facts that could only have been proved by production of records or documents. Some of the questions were in regard to suits at law and proceedings where there is nothing in the record to show he in any way participated or of which he had any knowledge; and all the testimony sought, in our view of the case, was immaterial, except in so far as it tended to discredit him or weaken his testimony by showing that his acts or declarations on previous occasions were at variance and inconsistent with his testimony at that time. This counsel had a right to do by introducing the records or documents, and asking him in regard to oral statements. It appears that in the course of the trial the papers executed by the witness, to which his attention was called, were admitted in evidence for the purpose of impeachment the only legitimate purpose they could serve.

It is clear that the title of the Henriett Company to onehalf of the Maid of Erin claim could not have been established by parol statements, or the acts of an agent in verifying papers where the facts were so stated. Counsel say this was one purpose for which the evidence was sought to be elicited on cross-examination. Had it been proper cross-examination, and directed to an issue, it was incompetent for the declared purposes for which it was sought. The agency of the witness had not been established by any testimony but his own. He stated under oath at the time suit was brought that he was the manager and agent of the Henriett Company. This was insufficient. An agency can not be established by his own declarations: Harker v. De

ment, 9 Gill, 16; James v. Stookey, 1 Wash. C. C. 330. If an agency had been proved, it was that at the time of verifying the papers he was the manager and agent of the Henriett Company; and his sworn statement that he was such agent, and that his principal owned one-half of defendants' claim, could not be binding upon, or in any way affect, the plaintiffs in this action. And although he was the agent of plaintiffs, in charge of their work in the Maid of Erin, no statement, no matter how solemnly made by him as the agent of the Henriett Company, in favor of such company, or against the title of plaintiffs, could affect either, much less conclude and estop the plaintiffs from asserting the contrary, as is urged by counsel. There was no plea of property in the Henriett Company, and of entry and justification under such a title. The defendant in this case can not set up a title of a third person in defense, unless he in some manner connects himself with it: Duncan v. Spear, 11 Wend. 54; Weymouth v. Railroad Co., 17 Wis. 567; Harker v. Dement, 9 Gill, 7. It follows that the court did not err in limiting the testimony on the cross-examination to the attempted discrediting of the witness, and in refusing to admit records, except for purposes of impeachment.

It is assigned for error that the court allowed plaintiff Tabor to testify to conversation with McComb after the latter had been called, and had given his version of it. Counsel put it upon the ground that a party can not be allowed to contradict or impeach his own witness. It does not appear that Tabor was called for any such purpose, or that his testimony had that effect. He was called to give his version of what occurred at that interview with McComb. A careful comparison of the testimony of both shows that of Tabor more corroborative of than contradictory to that of McComb-at least, as to the result of such conversation—although there is some discrepancy in regard to the language used. "The party calling a witness is not precluded from proving the truth of any particular fact by any other competent testimony:" 1 Greenl. Ev. § 443.

Appellants' counsel rely upon the conversation of Tabor with McComb as a license or consent on the part of Tabor to the entry and taking of the ores from the Maid of Erin

ground, and contend that his license or consent as a co-owner to the extent of one-sixteenth of the Maid of Erin ground was conclusive upon himself, and also upon his co-owners of the other fifteen-sixteenths, and was equivalent to a license or consent from all, to the extent of covering the entire property. A license or consent can not be extended by inference as a consent to enter property not spoken of or referred to in the conversation, and we can find nothing in the testimony of either McComb or Tabor in regard to entering and taking ore from the Maid of Erin ground. It was not attempted to be shown that Ovens, Wight and Rucker entered under license or consent from Tabor. At the conversation both testify that Tabor was informed the parties had entered under an order from the court, against which he was powerless for the time. It further appears that those parties were in at the time McComb and Tabor had the conversation, and McComb only asked consent to join them. It can not be contended that such a consent was a license to Ovens, Wight and Rucker to enter. The testimony went to the jury, and in the eighth and ninth instructions, given on prayer of plaintiffs, they were instructed, in effect, that they could not limit or reduce the amount to be recovered by reason of the supposed license or consent of Tabor, unless they should find that there was a consent on his part that they should enter through the Big Chief shaft, and take the ore from the Maid of Erin claim; and the same proposition is submitted in the instruction given on behalf of defendants in place of No. 7, refused. These in

structions on that point, we think, were correct, and fairly submitted to the jury the question of license or consent. And it is evident from the verdict that the jury found against any such license or consent; and, the jury having so found, it would seem unnecessary to determine whether the instructions were correct or otherwise in regard to the extent such consent, if found, should affect or modify the amount; or, in other words, whether it should cover the whole taking of ore, or be confined to the one-sixteenth owned by Tabor. The jury having found no consent or license on the part of Tabor, defendants could not be prejudiced by the instructions of the court in regard to its effect, if it were found.

The question is quite different from what it would be if it related to a transaction in the ordinary course of business relative to the joint property of tenants in common. Here it is attempted to justify a tort, and the injury to the entire property by the supposed license of one joint owner. If the entry had been made by Tabor in person, and the wrongs attempted to be justified under permission from, had been done by, him, his co-tenants could have had against him the same actions at law for injuries to their interests that all are attempting to enforce against parties having no interest. It is held "an action on the case sounding in tort may be maintained by one tenant in common against his co-tenant for a misuse of the common property, though not amounting to a total destruction of it:" McLellan v. Jenness, 43 Vt. 183; Agnew v. Johnson, 17 Pa. St. 373; Lowe v. Miller, 3 Grat. 196. "And, if one tenant in common assume to own and sell the thing held in common, the other may maintain an action of trover against him:" Burbank v. Crooker, 7 Gray, 159; Wheeler v. Wheeler, 33 Me. 347; Coursin's Appeal, 79 Pa. St. 220; White v. Osborn, 21 Wend. 72; Smyth v. Tankersley, 20 Ala. 212. The authority of the tenant in common could not be extended to cover acts of others that he could not legally have done himself. Hence the court was correct in holding and instructing the jury that the consent or license of Tabor, if such were found, could only extend to the interest owned by him in the common property.

Appellants further assign for error the ruling of the court in admitting the testimony of Tabor when called by the plaintiffs to show that, by a parol agreement made at the time of the conveyance of the different interests by Tabor, Moffatt, and Chaffee in the Henriett Company, possession of the property conveyed was to remain in the grantors until the purchase price was paid; that it never was paid; and possession under the conveyance never delivered. A part of such testimony-that which went to show that possession was to be retained--was inadmissible. "All conveyances of real estate and of any interest therein duly executed and delivered shall be held to carry with them the right to immediate possession of the premises or interest conveyed, unless a future day for the possession is therein

specified." Gen. St. C. 18, § 9; Drake v. Root, 2 Colo. 685. Under the statute, it is certainly required that the intention to postpone the operation of a deed shall be declared in the instrument, and it can not be proved by parol. It follows that the instructions of the court on this point were in part erroneous; that part of the testimony going to prove that possession of the property was never delivered, and remained in the grantors, was clearly competent and proper; and the instructions of the court were proper on that point.

The admission in evidence of the deeds of reconveyance by the Henriett Mining Company and the assignment of Rider of his cause of action was not erroneous, and should be sustained the former investing plaintiffs with full title before the commencement of suit; and of the validity of the latter, so as to enable Moffat, assignee, to succeed to all the rights of his assignor, there can be no question under our statute. Had defendants, by proper and competent testimony, attempted to prove the ownership of one-half of the Maid of Erin claim in the Henriett Company, it would have been inadmissible. There was no attempted justification of entry of Wight and others under the Henriett title of onehalf.

"Under a plea that the close upon which the alleged trespass was committed was not at that time the close of the plaintiff, the defendant may show lawful right to the possession of the close in a third person, under whom he claimed to have acted." Jones v. Chapman, 2 Exch. 802. "But a bare tort-feasor can not set up in defense the title of a third person between whom and himself there is no privity of connection." Branch v. Doane, 18 Conn. 233. "In justifying under a third person, the defendant must show both the title and the possession of that person" (Chambers v. Donaldson, 11 East, 65; Merrill v. Burbank, 23 Me. 538; Reed v. Price, 30 Mo. 442), and that the acts were done by that person's authority. Dunlap v. Glidden, 31 Me. 510. “A defendant can only justify upon the ground of a better right or title than the plaintiffs have. And it has been held that mere naked possession, however acquired, is good as against a person having no right to the possession." Knapp v. Winchester, 11 Vt. 351; Haslem v. Lockwood, 37 Conn. 500; Cook v. Patterson, 35 Ala. 102.