Stores, C. J.
There is certainly some color in this case *267for the claim of the defendant below, that the auditor has not found the facts upon which his liability depends, but only the evidence of them, and that therefore, as it was not competent for the superior court to draw inferences from that evidence, judgment was properly rendered in his favor. It is a rule, not in all cases easily applied, but from which that court will not depart, that it will not draw inferences of fact from the evidence detailed in the reports of auditors or committees in chancery, but will render its judgment only on the main facts found in them and on which the rights of the parties depend. In this respect it is governed by the rule which prevails in this court, in regard to the finding and reservation by that court of facts for our advice, in which cases we determine only on the facts presented, and not on the evidence of them. In other words, it is not our province to find facts. We take occasion thus to allude to this subject, because we have had reason, in several instances, to complain of the mode in which cases were presented in the reports of auditors and committees, especially the latter, where it would seem to have been supposed, that, in the cases referred to them, the court to which the report was to be presented, was like a jury, a tribunal to find facts as well as to pronounce the law upon them.
In regard to the report of the auditor in this case, we think that, although it might have been expressed more directly and explicitly, it is not liable to this objection, and that on the facts found in it the plaintiff below was entitled to recover. It sufficiently and indeed clearly appears, that the defendant, upon or soon after the conveyance to him of the goods in the store in question by the former tenant, either being, or representing to the plaintiff that he, the defendant, was then in the occupation of the store, on the claim of the plaintiff that she should require of him the future rent therefor, promised the plaintiff to pay her such rent so long as he should continue in possession; and that he continued in the occupation of it during such a period that it was worth the sum that is reported to be due to the plaintiff. That he so continued in possession is most obvious, because by the *268very terms of his agreement he was to pay rent only so long as he was in possession, and the auditor could not, under that agreement, have found a liability or indebtedness on his part, unless, or for a longer time than, he occupied the premises. Under this view, it is unimportant whether his declaration to the plaintiff, that he was in possession when the arrangement was made between them, was true or not; although if the defendant thereby induced the plaintiff to believe that he was then in possession, h.e would be precluded from denying that fact if it became material. That the facts thus found were sufficient to create the relation of landlord and tenant between the parties, admits of no question. And the defendant, having occupied as a tenant of the plaintiff, is not at liberty to dispute her title. This is a well established and familiar principle, and furnishes a complete answer to the defendants’ claim that there was, during his occupation, a subsisting lease to a former tenant who had not assigned or surrendered his term. Having occupied and enjoyed the premises under and as a tenant of the plaintiff' and on a promise to pay her rent, he is estopped from saying that the plaintiff had no right to let the store to him. On this question Phipps v. Soulthorp, 1 Barn. & Ald., 50, is directly in point. It also disposes of the other points made by the defendant. In that case the premises had been let to B. for a term determinable by a notice to quit, and pending such term, C. applied to A. the landlord for leave to become the tenant instead of B., and upon A. consenting, agreed to stand in B.’s place and offered to pay rent. • It was held that though B.’s term had not been determined either by a notice to quit or a surrender in writing, A. might maintain an action for use and occupation against C., and that the latter could not set up B.’s title in defence to the action.
The judgment complained of is therefore erroneous.
In this opinion the other judges concurred.
Judgment reversed.