39 Me. 312 | Me. | 1855
The opinion of the Court, Tenney, J., taking no part in it, not being present at the hearing, was drawn up by
— The defendant entered into the possession and occupation of the premises, for which the plaintiffs claim rent, as a tenant to one Benjamin Palmer, who before such entry had disseized the plaintiffs. Having entered under Palmer, and as his tenant, he was estopped to contest his title. He would not be permitted as against his landlord to set up the title of the plaintiffs. Doe v. Mills, 2 Ad. & El. 17; Sharpe v. Kelley, 5 Den. 431. The defendant then being liable to Palmer, could not have resisted his suit for rent, and is guilty of no negligence in not attempting a defence, which must have been unavailing.
The plaintiffs being disseized by Palmer, could not main
It was held in Meredith v. Gilpin, 6 Price, 146, that to constitute a valid attornment, the consent, or at least the knowledge of the landlord must be shown. The tenant must first surrender the possession to his landlord, before he can make any valid agreement to become the tenant of another. Moshier v. Reding, 3 Fairf. 418. A contract by which a tenant is induced to desert his landlord, is corrupt and void, and the person to whom he has attorned cannot maintain an action upon it. And if an adverse claimant tampers with a tenant, and gets possession, either by his consent or a collusive recovery, he is estopped to deny the landlord’s title. 1 Hilliard’s Abr., c. 15, § 98. In Cornish & al. v. Searell, 8 B. & C. 411, the defendants had attorned to the plaintiffs, and had agreed to hold the premises for such time, and on such conditions as might subsequently be agreed upon; but as the defendant had not received the possession of the plaintiffs, and as the lease to which he was a party had not been surrendered, the agreement was held void for want of consideration, and the action not maintainable. The parol agreement in this case was without consideration, the defendant never having received the possession from the plaintiffs, they never having entered to purge the disseizin of Palmer, and the tenancy of the defendant under Palmer not having been terminated.
This action was submitted to the presiding Judge, under the provisions of the Act relating to the Supreme Judicial Court and its jurisdiction, approved April 9, 1852. By c. 246, § 12, it is provided, that “ the Justice presiding at any term holden for jury trials shall hear and determine all causes whatsoever without the intervention of a jury, when both parties shall have so agreed and entered such agreement on the docket, and he shall direct what judgment shall
By recurrence to the report of the commissioners, accompanying the Act of 1852, it will be perceived, that the object to be effected by the provision under consideration was in accordance with the construction above indicated.
The parties may agree that the presiding Judge shall hear the cause, and upon hearing decide the facts, reserving by express stipulation the right to except to his ruling as to any question of law which may arise. Such was the case in Trustees v. Reed, ante, p. 41, where the parties expressly reserved the right to except to the rulings of the presiding Judge, as to any questions of law which might arise.
The language used byAhe Court in that case was general, but it should be construed in connexion with the facts presented for determination. The point there to be decided was, whether the parties could by any stipulations reserve the right to except. They undoubtedly may do so ¡ but in the
Plaintiff nonsuit.