Hubbard, J.*

The first objection taken to the ruling of the learned judge, who tried this case in the court of common pleas, *401is to his admission of the deed of Leonard and others to Francis Baylies and D. G. W. Cobb, under whom the plaintiffs claim. This objection arises from the language of the deed, the grantors representing themselves as being authorized by the members of St. Thomas Church of Taunton, for that purpose. From this it is argued, that it is the deed of attorneys, and being executed in their own names, conveys no title to the estate. This objection- assumes that the fee of the estate was in the St. Thomas Church, and that the grantors were merely attorneys of the proprietors." But as far as appears, the fee may have been, and probably was, in the grantors, and the church had only a beneficial interest in the estate, which interest the trustees, if they were such, chose to recognize, in their conveyance; and so the deed may be perfectly good. But whatever the relations of the church may have been to the land, the deed, upon its face, and by the reasonable construction of it, conveys an estate by the grantors in apt terms; and a stranger, to take advantage of it, must go behind the conveyance, and show a title in the proprietors of the church, and deduce a conveyance from them, to affect the title of the plaintiffs. The defendant, however, was not precluded from offering evidence tending to show an adverse and exclusive title in himself.

An exception was also taken to the ruling of the judge, that if the defendant occupied the estate, as the tenant of the plaintiffs, by their permission, and on a promise, either express or implied, to pay rent, the defendant could not be permitted, in this suit, which was for use and occupation, to dispute the plaintiffs’ title, and that the plaintiffs would be entitled to recover, without reference to the comparative strength and validity ot the respective titles of the parties to the estate; and it is urged that such ruling had a tendency to mislead the jury, as the evidence of title in the defendant would tend strongly to rebut the presumption of any implied contract to pay rent. If the defend ant’s evidence as to his title had been wholly excluded, there might seem to be some ground for this exception, as the plaintiffs were permitted to read the deed referred to, as evidence of .heii title. But so far as the case depended upon the strength *402of the respective titles, the defendant was deprived of no benefit; because he was permitted to offer such testimony as he thought best, in support of his own title.

But the ground of the action was for use and occupation ot the premises under a contract to pay rent. And the court held that on proof of such an agreement, a comparison of titles would not avail the defendant, because he would not be permitted to deny the plaintiffs’ title, as the parties would then stand in the relation of landlord and tenant.

Why, in this action, the plaintiffs put in evidence of their title, and the defendant was allowed to controvert it, by exhibiting proof of his title, does not distinctly appear; as it has often been held by this court that the title to real estate is not to be tried in an action of assumpsit for use and occupation. It is a well settled rule of law, that the tenant shall not controvert the title of his landlord ; he shall not call in question the right of him by whose permission he occupies. And though it has been said to be a technical rule, it is founded in convenience, and its tendency is to prevent fraud, to facilitate the letting of estates, and to encourage honesty and good faith between landlord and tenant. See Cooke v. Loxley, 5 T. R. 4. Inhabitants of Water-town v. White, 13 Mass. 481. Codman v. Jenkins, 14 Mass. 93. City of Boston v. Binney, 11 Pick. 1, and cases there cited.

The result of the authorities is this, that the action of ' assumpsit for use and occupation depends not on the validity of the plaintiffs’’ title, but on the contract between the parties, which may be either expressed or implied. Exceptions, indeed, exist; as where the tenant did not enter under the plaintiff or his grantors; or where the agreement expires, and the tenant gives notice of his intending to hold over under an adverse title; or where a judgment for the land has been recovered against the lessor. But the present is not a case falling under either of those exceptions. The plaintiffs proved a contract with the defendant, made on his application to let the estate to him under an agreement to pay rent, and that he had continued to occupy under said contract. However the case, therefore, may have been complicated by a comparison of *403titles, for reasons not apparent on the record sent from the court below, we see no reason to question the accuracy of the rulings, or to doubt the correctness of the verdict.

Exceptions overruled.

Wilde, 3. did not sit in this case.