By the Court, Sanderson, J.:
Whether a tenant can dispute his landlord’s title depends upon a variety of circumstances. The general rule is that he cannot, and that the estoppel continues, not to the end of the term merely, but to the end of the tenant’s occupation, or, where there has been a repudiation of the tenancy and a subsequent adverse holding by the tenant, until the Statute of Limitations has run in his favor. He cannot set up an outstanding title which he may have acquired. Before he can avail himself of such a title he must surrender the possession. (Doe on the demise of Knight v. Smythe, 4 M. & S. 348 ; Greeno v. Munson, 9 Vt. 37" court="Vt." date_filed="1837-01-15" href="https://app.midpage.ai/document/greeno-v-munson-6571905?utm_source=webapp" opinion_id="6571905">9 Vt. 37.) To say that he may set up an adverse title acquired by him to defeat a recovery by his landlord, after the term has expired, is to say that there is no estoppel, and that a tenant may always deny his landlord’s title. (Wilson v. Cleaveland, 30 Cal. 201.) To allow a party to obtain possession by entering under a lease, and then to disclaim, either before or after the expiration of the term, would be to encourage the very fraud and chicanery which the estoppel was designed to prevent. The estoppel rests upon considerations of public policy which, for obvious reasons, would be defeated in its purpose if one who has been put in possession of land by another should be allowed to controvert the title of the latter without first restoring him *245to as good a condition as he was in before he parted with the possession. (Glen v. Gibson, 9 Barb. 638.)
This general rule is, however, subject to several exceptions. One is where, in taking the lease, the lessee was deceived and imposed upon by .the lessor (Gleim v. Rise, 6 Watts, 44" court="Pa." date_filed="1837-05-15" href="https://app.midpage.ai/document/gleim-v-rise-6311697?utm_source=webapp" opinion_id="6311697">6 Watts, 44.) So if the tenant has been ousted by title paramount he may plead it (Hayne v. Maltby, 3 Term. R. 441); also that the landlord’s title has ceased or become extinguished (Jackson v. Rowland, 6 Wend. 666" court="N.Y. Sup. Ct." date_filed="1831-05-15" href="https://app.midpage.ai/document/jackson-ex-dem-russell-v-rowland-5513660?utm_source=webapp" opinion_id="5513660">6 Wend. 666); or that he has acquired his landlord’s title by purchase from him or at a judicial sale, or by a redemption. And if the action is brought by a vendee of the landlord the tenant may dispute , the derivative title. (Phillips v. Pearce, 5 B. & C. 433; Reray v. Cotter, 29 Cal. 168" court="Cal." date_filed="1865-07-01" href="https://app.midpage.ai/document/reay-v-cotter-5435919?utm_source=webapp" opinion_id="5435919">29 Cal. 168.) So if the tenant did not take possession under the lease, but was in possession at the time he took his lease, he may dispute the landlord’s title without first surrendering the possession; for not having received the possession from him, he is under no moral or legal obligation to restore it before adopting a hostile attitude, and he may have attorned, by mistake, to one who had no title. (Cornish v. Searell, 8 B. & C. 471.) To these exceptions may be added, possibly, the case where it appears affirmatively that both parties have acted" under a mutual mistake as to the law in regard to the title of the lessor. (Glen v. Gibson, supra.)
The case comes here upon the findings alone, and although, as stated by counsel, they have been purposely elaborated with a view to an appeal, so that any necessity for a statement might be avoided, yet it is impossible for us to say whether the case comes under the general rule or falls within some one of the exceptions noted above. Bor instance : It does not appear from the findings whether the defendant was in possession before he leased from the plaintiff, or went in afterwards and under the lease. If he did not go in under the lease, he had a right to try the title, as we have seen; for not having received the possession from the plaintiff, the latter is in as good a position now as he was at the time he *246executed the lease, which is all the benefit which the doctrine of estoppel is intended to secure. If the defendant was in possession at the time he took the lease, the plaintiff cannot say, “ You must surrender possession to me before you can try title with me,” because he cannot in the same breath add, “ for you received the possession from me, and fair dealing requires that before you make war on me you should put me in the same condition in which you found me.” The AÚtal fact, which ought to have been found in order to sustain the theory of the appellant, is that tlie respondent received the possession from the appellant under and by virtue of the lease. If he did, he cannot, as we have seen, rely upon a title afterwards acquired by him to defeat a recovery in, whole or in part. Yet this most important fact is not found either way.
The only finding bearing'upon this point is as follows :
“ That on the 23d day of January, 1861, the plaintiff as landlord, and the defendant as his tenant, entered into and executed a certain written lease of the premises described in the complaint, for the term of ten months from the 1st day of January, 1861, and for the rent for said term of fifty dollars cash, and for other considerations expressed in said lease.”
Nothing is said as to which party was in possession at the time the lease was made—whether the defendant was in possession or entered afterwards under the lease—nor any facts found to show that the defendant may not be within some of the other exceptions to the rule in hand instead of the rule itself. Upon such a finding the appellant cannot obtain a reversal Avithout showing that the rule upon which he relies is universal, or without exceptions of any kind, which, as we have seen, is not the case.
It may well be doubted whether the Act of the 20th of May, 1861, (so far as it relates to findings, and reproduced in the amendments of 1866 to section one hundred and eighty of the Practice Act,) is not productive of more mischief than good. It certainly proceeds upon an illogical theory, *247for it inverts the natural and logical order of the proceedings. Instead of making it the duty of the successful party to see that the findings contain facts sufficient to sustain the judgment, it makes it the duty of the unsuccessful party to see that it contains facts sufficient to reverse it. Instead of making the finding a consistent and visible foundation for the judgment to stand upon, the statute converts it into air or a mine for its explosion. This change certainly detracts from the logic of the judgment roll, the various parts of which, like the members of a Macedonian phalanx, should rest upon and support each other, and entails a practice which, in a majority of cases, defeats the end which findings were intended to subserve.
The practice, which prevails to a very considerable extent, if not universally, of allowing the successful party to draw the findings after the judgment of the Court has been announced, does not favor the ends which a finding is designed to accomplish. To be of any use, under the operation of section one hundred and eighty, as amended in 1866, the finding should contain all the facts disclosed by the evidence which, in the judgment of counsel on both sides, have any bearing upon the question as to what the judgment should be. Unless it does, it is no better than a general verdict, and wholly fails to accomplish the object intended, which is to obviate the necessity of a motion for a new trial and a preparation of a statement of the evidence preliminary to an appeal. In a vast majority of cases there would be no occasion for a motion for a new trial, and as incidental thereto, for the trouble, labor and expense of getting, up a record upon which the motion is to be heard, if the findings were what they are designed to be, and what they ought to be; for in nine cases out of ten, where the trial is by the Court, the sole controversy here is as to whether the conclusions of law are correct. In all such cases there should be, and there certainly need be, no occasion for a motion for a new trial, or for bringing the evidence to this Court in any form. Every such case ought to come here upon the judg*248ment roll. But under the present practice, in getting up the findings serious obstacles are thrown in the way, and the end of a finding often defeated, and therefore a motion for a new trial attended by delay, labor and expense made necessary. Instead of announcing its judgment, and then, if findings are demanded by the unsuccessful party, directing the successful party to draw them, it would be a better practice for the Court to first ask counsel upon both sides if they desire findings; and if they do, reserve its judgment and direct each side to prepare and submit such questions of fact as they desire to have found. This being done, the Court should answer from the evidence every question submitted, and then, having first determined and settled all the facts, pronounce its judgment, and not before. By such a course a defective finding will rarely happen or a motion for a new trial be required. If exceptions have been taken to the rulings of the Court, upon demurrers to evidence, they can be embodied in bills of exceptions and brought up for review in that form. If, however, the practice of first announcing the judgment, and preparing the findings afterwards, is followed, the Court ought to direct the losing party to draw the findings; for the successful party, under the operation of the Act in question, has no motive to make the findings, in the first instance at least, what they ought to be. Under the former practice the successful party was primarily interested in having the findings full and complete for the purpose of sustaining the judgment, and it was therefore proper that he should be allowed to draw them; but under the present practice the conditions are inverted, and the losing party has become primarily interested in the fullness and completeness of the findings, and, by parity of reason, he should be allowed to draw them. The course first suggested, however, is in all respects the better practice.
Judgment affirmed.
Sawyer, J., dissenting:
As I understand the law, the exception upon which the discussion in the opinion arises, is too broadly stated by my associates. I do not understand that a party who takes a lease, while in possession, can under all circumstances dispute the title of his lessor. I do not find the exception so broadly stated anywhere in the books—either by the elementary writers, or in the reports. I have not been able to find a case that goes so far, while I find a number to the contrary. In Me Cornell v. Bowdry’s Heirs, 4 Mon. 400, the Court say : “ But with respect to Lettice Bowdry there are other facts proved in the cause which, in our opinion, excludes her from controverting the right of McConnell (one of the lessors of the appellant) to recover in the present case. She appears, on two successive years, to have leased the land of McConnell, and as the possession has never been since restored by her, according to well settled principles, she is estopped to contest his title. That a tenant is not in general allowed to dispute the title of his landlord was not denied in argument, but it was said, that it appears from the lease accepted by her from McConnell that she was, at the time both leases were made, residing upon the land; and it was argued that unless the possession is received from the landlord, the tenant is at liberty to controvert his title; and hence it was inferred that Mrs. Bowdry is not concluded from questioning McConnell’s title by her acceptance of either lease. But, as respects her right to dispute the title of McConnell, we apprehend that it is totally immaterial whether or not Mrs. Bowdry was, in point of fact, residing upon the land at the date of the lease. By accepting the lease, and stipulating for rent, she as effectually recognized the title and possession of McConnell to the land upon which she resided, as she could possibly have done if at the time she had not lived upon the land, and had, after the lease was made, entered under McConnell. After accepting the lease she was the *250tenant of McConnell, holding the possession under and for him, and in a proceeding like the present cannot, until she restores the possession to him, be permitted to deny that, at the making of the lease, he had title. With respect to Thomas, who was also a joint lessee with Mrs. Bówdry in the first lease, the same principle applies, unless the possession which he held under the lease has been restored to McConnell; but if he has yielded that possession to McConnell, and has not afterward in any way held under Mrs. Bowdry, he should not, by either lease, be prevented from controverting McConnell’s title.” This is directly in point. So in Hall v. Butler, 10 Ad. & El. 205, an action of replevin for property distrained for rent, Hall entered under a written demise under seal from one Hevitt, upon a yearly tenancy, and paid rent to Hevitt. Before the next rent day, Butler, defendant in the replevin suit, claimed the land, whereupon Hall and Hevitt went together to said defendant, Butler, who was thereupon informed by Hevitt, that he had given up the premises to defendant, and that defendant was now to be his landlord, and the rent was thenceforth to be paid to him. Hall accordingly paid to said defendant six shillings and sixpence on account of rent. Before any further payment had been made, another party, one Daniel Butler, claimed the premises and the rent, and thereupon Hall refused to pay rent to either till the question between the claimants should he settled, and the defendant in the replevin suit distrained upon him. The question was whether, having attorned to defendant Butler, while in possession, he could afterward dispute his title, and it was held that he could not. Lord Denman, C. J., said: “ This is either a ratification of a demise by Butler, or is a fresh demise by him. In either case the same consequence follows, viz : that the title of the defendant, Butler, cannot be disputed by the tenant. As no deception or misrepresentation was intended by Hevitt or by defendant, Butler, the case falls within the ordinary rule.” And Mr. Justice Louderdale says : “ The legal effect of the arrangement is that the plaintiff may be considered as having *251become tenant to defendant Butler under a fresh talcing from Christmas, and the avowry is therefore proved ” (206). This appears to me to be in point. In Ingraham v. Baldwin defendant entered as tenant under one Gilbert, and after-wards, while in possession, attorned to plaintiffs, Gilbert’s grantees, and agreed to pay a certain rent for the land. He subsequently refused to pay, on the ground that he had as good a title to the premises as the plaintiffs. The Court say : “ In the second place, a recognition by the defendant, being in possession, of the title of the plaintiffs, or of their grantor, in the manner above mentioned, would estop the" former from insisting that his lessor or vendor had no title to the premises, unless he could show that the acknowledgment was produced by imposition, or made under misapprehension of his rights ” (9 N. Y. 47). This puts the estoppel as well on the ground of his acknowledging the title of the plaintiffs by attorning to them, as on the ground of his taking a lease from their grantor. In Panton v. Jones, 3 Camp. 372, it is not shown that the plaintiff had title, or that defendant entered under her. It only appeared that on a prior occasion the defendant being in possession, the plaintiff distrained for rent, and defendant submitted to a distress, and on this ground alone she was held to be estopped from denying plaintiff’s title. Mr. Justice Bailey said: “ I have no doubt the submitting to a distress acknowledges a tenancy. The landlord, after distraining, cannot bring ejectment, and the occupant, if he does not replevy, I think is precluded from denying the title of the landlord.” This was but an admission of the landlord’s right by' implication by a party in possession. In Gleim v. Rise, 6 Watts, 45, cited in the leading opinion, the rule is stated thus: “ The law is well settled that when a person is in possession of property and leases it to another, and puts him in possession, the tenant cannot object to the title of his lessor, who can recover for rent, or for use and occupation if no rent was agreed upon. Also, if an owner of property find another in possession who agrees to hold under him.” How the term owner, *252as here used, is a general term. The learned Judge could not have intended to say the party having a perfect legal title, because if he was obliged to establish that, for the purpose of availing himself of the estoppel, he could recover without the aid of the estoppel, and there would he no necessity for relying upon it. He evidently meant to be understood as saying, that a party claiming to own land finding another in possession who agrees to hold under him. So in the case of an agreement to purchase, in which the estoppel stands upon precisely the same principles as between landlord and tenant, a party, although in possession at the time of making the agreement, in an action to recover the land, is estopped from denying the title of his vendor. So held in Jackson v. Ayres, 14 Johns. 225. The Court say: “ This agreement to purchase was an acknowledgment of the title of Brown, and would estop the defendant from setting up an outstanding title. The defendant being in possession, when the agreement was entered into, could make no difference. He was in as a mere naked possessor, and must be considered in the same light as if he had entered under the agreement.” The same was held in Jackson v. Smith, 7 Cow. 719-20, unless the agreement could he shown to be a cover for usury, and therefore void. The exception referred to, so far as my examination goes, is limited to cases where the party in possession has been induced to take a lease by force, fraud, misrepresentation or mistake. I have not found a case where the defendant who has taken a lease, or acknowledged the title of his landlord, by paying rent, or otherwise, while in possession, has been allowed to dispute the title of the landlord, which has not embraced some one or more of these elements, and stress has been laid upon the fact by the Court in deciding the several cases. Thus in Hamilton v. Marsdon, 6 Binney, 45, one Magee was in possession under one Brown, and plaintiff, Hamilton, came with two men armed with guns and threatened to drive Magee off unless he would take a lease from him, and, in consequence, he did take a lease. The party claiming under Magee was permitted to *253dispute Hamilton’s title. Mr. Chief Justice Tilghman says : “ If the plaintiff' were permitted to avail himself of it in the present instance, it would be suffering him to defeat Brown’s title merely by his own outrageous conduct. This ease, therefore, forms an exception to the general rule, which is founded on the presumption of the lease being taken without . fraud, force or illegal behavior on the part of the lessor.” (47.) So also in Brown v. Dysinger, 1 Bawle, 409. One, Brown, being then dangerously ill with consumption, of which he soon after died, and in the possession of the premises, in that condition took a lease from one Walker, under threats of being turned out if he did not. The Court holds that the landlord’s title was properly attacked, on the ground that “ a tenant may impeach his landlord’s title, if induced to take a lease by misrepresentation and fraud,” and the like. (415.) So in Miller v. McBrier, 14 S. & R. 385, where the Court below, on the ground that a tenant cannot dispute the title of his landlord, refused to allow the defendant to introduce evidence to show that an instrument claimed to be a lease was executed by a party in possession upon fraudulent representations, the Court on appeal say: “ A tenant may impeach his landlord’s title whenever he can show that he was induced to accept of a lease by misrepresentation and fraud; and the exhibition of a title founded in forgery to induce a person already in possession to accept a lease, is an act whose character is too unequivocal to be doubted. The evidence, therefore, was admissible to show that the agreement was procured by imposition and deceit.” (385.) (See also Swift v. Dean, 11 Vt. 325; Schultz v. Elliott, 11 Humph. 186.) The English cases, also, so far as they have fallen under my observation, all involve the element of fraud, misrepresentation or mistake as to the title of the lessor at the time of taking the lease, or attorning. And this element is particularly stated in the opinion of the Judges. Thus in Gravenor v. Woodhouse, 1 Bing. 42, Mr. Justice Park says : “ When it (rent) has been paid under a misrepresentation, the tenant is not estopped from resisting further payment *254after discovery of the mistake.” So in Gregory v. Doige, 3 Bing. 475 : “ The Court was clearly of opinion that the plaintiff, having come into possession under a former owner, and having entered into this agreement in ignorance of the defect in defendant’s title, might now show that defendant was not his landlord.” Mr. Justice Butler, in Williams v. Bartholomew, is thus quoted by the Court: “ If the tenant could have proved that his attornment proceeded on the misrepresentation of him who claimed as remainder man, he might have proved that another was still alive and entitled.” (475.) Doe v. Brown, 7 Ad. & El. 449, turned upon misrepresentation and fraud, and Rogers v. Pitcher, 6 Taunt. 207-8, upon misapprehension and mistake of facts. And in Cornish v. Searell, 8 B. & C. 471, the only authority cited to the point in the opinion of my associates, was a case of mistake, and in that very case the exception is properly stated and limited. Mr. Justice Bayly says : “ It has been said that the defendant, having agreed to become tenant to the plaintiffs, can dispute their title. If the defendant had received possession from them, he could not have disputed their title. In Rogers v. Pitcher, and Gravenor v. Woodhouse, the distinction is pointed out between the case where a person has actually received possession from one who has no title and the case where he has merely attorned by mistake to one who has no title. In the former case the tenant caiinot (except under very special eireumstaüees) dispute the title; in the latter he may.” (475.) Washburn states the rule thus: “ The tenant cannot set up a title adverse to the lessor’s, either in himself or a third party, inconsistent with the lessor’s right to grant the original lease, even though * * * the lessee was in possession when he accepted the lease.” (1 Wash. Real Prop., 358-9, par. 4.) The exceptions are stated in the paragraphs immediately following.
Upon these authorities I am satisfied that a party in possession, who takes a lease, is estopped from disputing the lessor’s title, unless he has been induced to take the lease by force, fraud, misrepresentation or some mistake induced by *255the lessor, and that the exception is too broadly stated in the opinion of my associates.
Li my judgment, the provisions of section one hundred eighty of the Practice Act, as amended in 1866, are salutary. So far as my observation extends, the points upon which judgments were formerly reversed on the ground of insufficiency of or defects in findings, were such as were not litigated in the Court below, or were merely formal, and in preparing the findings, the attention of the Court or counsel was not drawn to them, and consequently they were overlooked and omitted. The defect was not discovered till too late to remedy it, when it was brought to the attention of the party succeeding, for the first time, as a point for the reversal of the judgment on appeal.
It will be seen hy reference to section one hundred eighty, as amended, that a party is not entitled to a written finding as a matter of right unless, “ at the time of the submission of the cause,” he shall have “ requested a finding, in writing, and had such request entered in the minutes of the Court.” I concur in the suggestion that when such request is made, it would be the better practice to require the counsel on each side to present the points arising under the issues and evidence, upon which they desire findings, before the finding is drawn up, and then to make a finding on all such points. This would, doubtless, be advantageous and save much trouble in passing on exceptions for defects. When findings are drawn by counsel, I think, also, that the Court, before signing and filing, should always submit them to the opposite counsel for their suggestions.