132 S.E. 204 | W. Va. | 1926
Albert Farley, on the 5th day of April, 1923, instituted an action in unlawful entry and detainer before a justice of the peace of Raleigh county, against one Wint Thompson, for unlawfully withholding from him one certain dwelling house and premises situate in Slab Fork District on the West Fork of Winding Gulf, in said county. The trial before the justice resulted in a verdict for the plaintiff, and the defendant appealed to the circuit court.
Upon the hearing in the circuit court, the only evidence on behalf of the plaintiff was his own testimony. He testified that he obtained possession of the premises in question from his father in March, 1918; that he rented said premises to the defendant under a written contract of lease, dated the 9th day of November, 1921, in which the premises set out in the summons were described. This contract was introduced in evidence. It contained the provision that Thompson was to vacate said property "in ten days after being noticed so to do." Plaintiff further testified that he had possession at the time he leased said premises to Thompson; that sometime later (February, 1923) he sold the land to one Henry Mitchem and Robert Childress, and a deed was executed by him, at their direction, to an infant girl, Clara Mitchem, and the same delivered to her on the date last aforesaid; that it was the understanding that he was to give possession of the property to the purchaser; that in accordance therewith he *94 informed Thompson that he had sold the premises and asked him to vacate; that Thompson promised to do so by the first of April; that Thompson failed to comply with this notice to vacate, and that for this reason plaintiff resorted to this action. The defendant offered no evidence but made proffer of certain record evidence and oral testimony to the effect, that the premises were in fact owned by the Beaver Coal Company; that he was a tenant of said company at the time Farley executed his lease to him; that the Farley lease was entered into by him without knowledge of said company; and, further, that the title to the premises would come in question. The court refused to permit the proffered testimony to be introduced, and the case went to the jury on the testimony of the plaintiff. The jury returned a verdict that the plaintiff recover the possession of the land in the summons described, and certain damages for its detention. The court entered judgment on this verdict. It is to this judgment that the defendant prosecutes this writ of error.
At the threshold we are met with the question whether or not Farley may maintain this action. As we have shown, it developed in the testimony that Farley had conveyed the premises, and had delivered a deed therefor to a third party, prior to the institution of this action. The question presented here is one of first impression in this state.
There is no rule of law better settled than that a tenant is estopped from disputing his landlord's title. Stover v. Davis,
In order to sustain the action of unlawful entry and detainer, either before a justice (Chap. 50, § 211, Code), or in the circuit court (Chap. 89, § 1, Code), the possession must be (whether the entry was unlawful, or when the entry was lawful, and the tenant detained possession of land after his right has expired) "without the consent of him who is entitled to the possession." The verdict of the jury, under Chap. 90, § 23, Code, shall be for the one "as appears to have right to the possession of the premises." Under a similar statute to ours, the Supreme Court of Virginia, in Hobday v. King,
We are, therefore, brought to the conclusion, so far as this case is concerned, that it is a competent defense for the defendant to show that, since his lease from the plaintiff, the plaintiff has conveyed the land in controversy, by deed to another, and that this action cannot be maintained in his name. On principle, the authorities to this effect referred to seem to be sound. The lessee does not dispute the title of his lessor, in showing that the former has conveyed his title to another since the lease of the premises. But when the lessor, after the lease, conveys his title to another he loses the benefit of the estoppel, or rather transfers it to his assignee or vendee. In the language of Lord Dennam, in Downes v. Cooper, 2 Ad. El. N. S. 256, 42 Eng. C. L. R. 663, he is estopped by his conveyance from claiming the benefit of the estoppel arising from the lease. However there is no necessity for an attornment to perfect the right of the assignee in such case.
Our conclusion renders all other questions raised on the record moot.
Reversed. *97