| R.I. | Feb 21, 1880
This is an action of trespass and ejectment to recover possession of an estate let. The defendant originally entered into possession of the premises under one John Morris, trustee, and continued in the occupation of them down to the bringing of this suit. At some time prior to April 4, 1878, he paid rent to the plaintiff, Mrs. Dc Wolf, as her tenant, and on that date he took from her a lease of the premises in form an indenture executed by Martin and Mrs. De Wolf, but not by her husband. The rent reserved in this lease was paid by the defendant down to November 1, 1878. At the trial the defendant testified that he paid rent to Mrs. De Wolf, believing her to be the owner of the property, and he offered to show that the premises were conveyed to her by her husband, through a third person, without consideration. He also offered in evidence a deed of the premises to himself from one Benedict, a deputy sheriff, dated January 13, 1879, purporting to convey to him all the right, title, and interest of the plaintiff, Louis C. De Wolf, in the premises on April 6, 1878, the date of the levy thereon of an execution against him in favor of George T. Dana Co. These offers the court refused, assigning as a reason for excluding the deed, that a tenant could not dispute the title of his landlord. The defendant thereupon excepted.
It is clear that the so-called lease, though in form an indenture and executed by the defendant, could not operate as an estoppel. To create an estoppel by lease both parties must besui juris, since it is essential to the validity of an estoppel that it be mutual. 1 Inst. 352 (a); Welland Canal Co. v.Hathaway, 8 Wend. *534 480, 484; Bolling v. Mayor, c. of Petersburg, 3 Rand. 563, 576. As the husband of Mrs. De Wolf did not join the lease, it was absolutely void. It did not bind her and consequently did not bind the defendant.
The principle that a tenant cannot impeach his landlord's title, or set up a title in himself acquired during the tenancy inconsistent with the title of his landlord, which he has admitted by accepting the demise, is undoubted. It does not, however, preclude him from availing himself of any defence consistent with such admission. If the landlord has transferred his interest in the premises, the tenant, though estopped to deny the title of the landlord from whom be received possession, may still show that the transfer was invalid and passed no title to the claimant. Carvick v. Blagrave, 1 Brod. B. 531;Phillips v. Pearce, 5 B. C. 433; Funk's Lessee v.Kincaid,
Exceptions overruled.