An action brought by the plaintiffs to recover of the defendant the possession of real estate. At the return term the defendant answered denying the plaintiff's title ; and a third party, to-wit, R. M. Henry, filed an affidavit alleging that he was the owner of the land and that the defendant Rollins was in possession and holding as his tenant;, whеrefore he demanded to be let in to defend as landlord this and four other actions brought by the samе plaintiffs against other parties for the same lands under the same claim of title. The plaintiffs opposed the motion and read affidavits to show that the defendant was
their
tenant and as such was estоpped to deny their title. Counter affidavits were read by ITenry to establish the contrary. The Court upоn all the affidavits proceeded to find the facts and to declare as a matter of law thereupon that the defendant was the tenant of the plaintiffs and could not be heard to deny their title ; wherefore he denied the motion of Henry to be allowed to defend as landlord and gave j udgmеnt and awarded a writ of possession against the tenant. Henry appealed to this Court. There is еrror. The case is somewhat novel. Two parties claim adversely to each other to be the landlord of the same tenant of the same premises at the same time ; and it may be, that the acts of the tenant have been such that he is estopped from denying the title of either; as by taking а lease from one, attorning and paying rent to the other. Now it is perfectly well settled that evеn at common law the
landlord
has the
right
to defend either with or instead of the tenant. But the question is, ■when
two
claim to be landlord, the plaintiff and a third party, has the latter the right, to defend? The answer is this.; where a person clаims in
op-position
to the title of the tenant in possession, he cannot be considered as laudlord ; b ut the term ‘‘landlord” for the purposes of the action extends to ev-‘ ery person whose title is. connectеd to and consistent with
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■the possession of the occupier and is divested or disturbed "by any claim advеrse to such possession. Adams on Eject. 228-31.
Oxendon
v. Lawrence, W. Bl. 1259. So that now it is considered as settled that thе word
landlord
is extended to all persons claiming title consistent with the possession of the occupiеr ; and that it is not necessary they should have previously exercised any act of ownership over the lands. All such persons have the right to defend as landlord and no other. The proper manner of asserting to the •Court the right to appear and defend we think is by affi davit. It is for the purposes of the action, like an affidavit to continue or remove a cause ; if sufficient cause appear on its face, it is conclusive of the right to defend.
Wise
v.
Wheeler,
6 Ire. 196. In this case just cited it was decided by the Court thаt the liberty of defending as landlord was not a question addressed to the discretion of the Court but was a right whiсh could not be denied.
We
are clearly of •opinion that this right of defence is not affected by sеction -61 of the Code of Civil Procedure, for the case of
Wise
v.
Wheeler,
was decided in the face of Rеv. Code ch. 31, § § 46-8. If the allowance of the motion to defend, was not then discretionary with the Court, it cаnnot be so held now, under a system whose express purpose is to provide for the trial of all quеstions growing out of the action. Upon filing the affidavit, therefore, R. M. Henry should have been per-rmitted to defend either with or without the tenant upon ■ complying with the other statutory requirements. "When ■the tenant failed to file the necessary bonds or to comply with all the rules preliminary to his right to answer, the law .-and practice were that the plaintiff was entitled to judgment by default against the tenant but no writ of pоssession could "issue ; but there was a stay of execution until a verdict was 'had in his action against the claimant. Adams’ Eject. 239.
Jackson
v. Stiles,
PER Curiam. Venire de novo.