The opinion of the court was delivered by
Royce, J.
Upon the agreed statement of facts the question is made as to the right of the plaintiff to maintain the action. By the lease of the land described in the declaration, executed by the selectmen of the town of Jamaica of the one part, and Rogers Howe of the other part, under whom the defendant claims title, it is stated to be an indenture between the selectmen of the town of Jamaica of the one part, and Rogers Howe of the other part; and it is executed by the selectmen in their official capacity of selectmen; and it will be seen by an inspection of the lease that the consideration moved from the town, and not from the selectmen. The selectmen, in making the lease, acted as the agents of the town, and were in the execution of a power conferred upon them by law, and their act inured to the benefit of the town, and the contract made by them was, in legal contemplation, the contract of the town. This being so, the right to enforce it by suit in the name of the town is clear. Arlington v. Hinds, 1 D. Chip. 431" court="Vt." date_filed="1824-07-15" href="https://app.midpage.ai/document/town-of-arlington-v-hinds-6570765?utm_source=webapp" opinion_id="6570765">1 D. Chip. 431; 5 Vt. 438 ; 8 Vt. 395 ; 21 Vt. 37 ; 24 Vt. 39 ; 27 Vt. 89.
The defendant claims that the Act of 1823, by which the right of land in said town originally granted for the use of grammar schools was appropriated to the use of common schools in said town, is unconstitutional; but in the view we take of the cáse there is no necessity for deciding that question. Rogers Howe, by accepting the lease from the town became the tenant of the town, and those holding under him hold in the same right. The court decided in Robinson v. Hathaway, Brayt. 150, that in ejectment for non-payment of rent the tenant cannot set up a defense *553adverse to the title of his landlord, nor deny his title ; and in Green 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, that the tenant cannot dispute the title of his landlord until he has first bona fide surrendered his possession. The same doctrine is applied in Stacy v. Bostwick, 48 Vt. 192" court="Vt." date_filed="1876-01-15" href="https://app.midpage.ai/document/stacy-v-bostwick-6580307?utm_source=webapp" opinion_id="6580307">48 Vt. 192. The defendant, then, not being permitted to question the title of the plaintiff, it remains to be determined whether the action of ejectment will lie. It would be profitless to discuss the rules of the common law governing this form of action, so far as they have been abrogated or changed by our statutes. The proviso in the lease is: “ And it is the true intent of these presents and the parties that if the said yearly-rents hereby reserved, or any part thereof, shall be behind or unpaid, that then and from thenceforth it shall and may be lawful for the said selectmen into and upon the said demised premises and every and any part thereof, with the appurtenances, in the name of the whole, to re-enter, and the same to have again to re-possess and enjoy.” It was after default made in the payment of the stipulated rent, and repeated demands for its payment, that this suit was brought. Without considering in detail the objections that have been urged against the right of recovery, it is sufficient to say that in our judgment they are all met and answered by section 14, c. 40 of the Gen. Sts. In Maidstone v. Stevens, 7 Vt. 487" court="Vt." date_filed="1835-03-15" href="https://app.midpage.ai/document/maidstone-v-stevens-6571788?utm_source=webapp" opinion_id="6571788">7 Vt. 487, which was an action of ejectment for a school lot in which the defendant claimed title under a lease from the selectmen of the plaintiff, and an annual rent was reserved by the lease, payable to the selectmen, and a right of re-entry given in case said rent should at any time remain over due twenty-eight days, being lawfully demanded, no re-entry was in fact made ; but the court held that the action would lie under the statute, without a demand of the rent, and that the lease in terms giving the right of entry only after the rent in arrear shall have been lawfully demanded, does not alter the case. We are satisfied with the reasons given by the court and on which their decision was based in that case, and it would be a work of supererogation to repeat them.
There is nothing in the statement of facts that shows that any error was committed in the assessment of damages, and the judgment is affirmed.