3 N.H. 204 | Superior Court of New Hampshire | 1825
delivered the opinion of the court.
The counsel for the demandant in this case has contended, that the tenant is estopped by the lease, which he took *f
Lord Coke says, £i if a man take a lease for years of his “ own land by deed indented, th/e estoppel doth not continue “ after the term ended. For by the making of the lease the “ estoppel doth grow, and consequently by the end of the “ lease, the estoppel determines.” Coke Litt. 47, b.
In James' case, {Moor 181,) James, seized of land in fee, took a lease for years from a stranger, by deed indented, of his own land. The term expired, and the stranger entered, and James brought an action of trespass; and the issue was, whether James had a freehold in the land, or not ; and the jury having returned a special verdict, the question was, whether the lease was an estoppel after the term ended ; and it was agreed by the judges, that it should be an estoppel only during the term.
The same case is reported in Croke Elis. 36, and is mentioned in the end of Rawlyn's case, 4 Coke 54.
In the case of Brudnell vs. Roberts, (2 Wilson 143,) the action was covenant brought by the plaintiff upon a lease for years, as heir in reversion in fee to his father, and the breach assigned was want of repairs: the defendant pleaded, that the father when he made the lease to him was only tenant for life, and that the father being dead, the lease was determined, and traversed, that after the making of the indenture of lease the reversion belonged to the father and his heirs. To this plea the plaintiff demurred. It was said by the defendant’s counsel, that during the continuance of the lease the defendant would have been estopped to say, that the lessor had not the reversion in him, but the lease being at an end, the lessee was, as it were unmuzzled, and not estopped to plead the truth. And the reporter says, of that opinion was the whole court-
The question is not, whether the tenant in this case is es-topped to say that the lessor had nothing in the land during the year, which the lease continued. 1 Salk. 277, Kemp vs. Goodall.—3 Levintz 146, Heath vs. Vermeden.—6 D. & E. 62, Wilkins vs. Wingate.
But the question is, whether the tenant, as the term created by the lease has now expired, is estopped to say that the lessor had nothing in the reversion. This question is too well settled by the authorities, to which we have referred, to admit a doubt.
It is however urged, that although the tenant may not be estopped by the mere demise after the expiration of the term, yet he is estopped by the description of the land in the lease ; “ all the land which the said Jonathan holds 11 from the said Moses T. Thompson, by deed bearing date “ the 20th March, 1813.”
It is a general rule well settled, that when a deed refers to a generality, the party may aver that the matter, to which the reference is made, does not exist. But where it refers to a precise thing as existing at the time, it is an estoppel. This is well illustrated fay the case of Paramoure vs. Dunning, (Moor 420.) “ The condition of an obligation was to “ pay all legacies, which J. S. had devised by his will : the u defendant would have said that J. S. made no will ; but “ by the court he shall be estopped ; but he may say, that “ J. S. gave no legacy by his will.” Here the will was referred to as in existence. But an agreement to pay all legacies given by a particular will is not an admission, that there are any to pay. Willes 9.—2 B. & P. 299.—Com Dig. “ Estoppel,” A. 2.
But whether this case falls within this general rule need not be now settled, because there is another answer to this objection which is decisive. Tor if this tenant might be es-topped by the lease of 1822, to say that Hammond did not hold the land at that time under the deed of 1813 ; still this
