109 Mich. 524 | Mich. | 1896
This proceeding was commenced before a circuit court commissioner to recover possession of
It appeared before the commissioner that the claimant was the owner in fee of the land, and leased the same to the defendant at a rental of $9 per month. The defendant paid the rent to claimant for a time under his lease, when in June, 1895, he refused to pay any further rent, and claimed that he was holding the premises under one Laurence E. O’Neill, from whom he then rented the premises at the rate of $5 per month. It appeared, further, that O’Neill, in 1893, bid in the premises at a tax sale of that year for the taxes of 1891; that, after the sale to him, and while defendant was in possession under claimant, he filed a petition in the circuit court for the county of St. Clair, in chancery, where the lands where situate, for a writ of assistance. The petition for the writ, together with the auditor general’s deed for the premises, and the decree of the court ordering the sale, and also a written demand for the possession of the premises, were served upon Winans, whereupon Winans entered into a lease from O’Neill, and thereafter the petition was withdrawn, and the proceedings for the writ of assistance were dismissed. From the return of the commissioner it appears that the defense sought to be made by Winans there was that O’Neill had a paramount title, and that, by reason of his (O’Neill’s) demand for possession, defendant had the right to treat the demand as an ouster, and thereafter attorn to O’Neill, and that, being in possession, by reason thereof, under the lease from O’Neill, the claimant could not recover possession from him. That position is sought to be sustained in this court.
The general rule is stated in Byrne v. Beeson, 1 Doug. 179, as follows: “ A tenant cannot dispute the title of his landlord, nor, by his own act merely, change the tenure so
“The rule is familiar that both tenants and those in privity, either in blood or estate, are estopped from disputing the title of the landlord, or the title of anyone who suceeeds to his rights, so long as they hold the possession originally derived from him. But this principle does not forbid the tenant from showing that the landlord’s title has expired, or has been extinguished by his own act or by operation of law,”—citing Lamson v. Clarkson, 113 Mass. 348 (18 Am. Rep. 498); Fuller v. Sweet, 30 Mich. 337; Hilbourn v. Fogg, 99 Mass. 11; Despard v. Walbridge, 15 N. Y. 374; Mountnoy v. Collier, 1 El. & Bl. 630, 16 Eng. Law & Eq. 333.
But in this case the commissioner, while excluding the evidence that would tend to show title in the defendant, continued to take cognizance of the case, and to try and determine the rights of the parties, and awarded restitu
The proceedings before the commissioner must be quashed, and the judgment of the circuit court reversed, with costs of both courts in favor of defendant.