delivered the. Opinion of the Court.
This wás an action of trespass tqtry titles, brought in. 1822, in the circuit court of the' United States for the district of South Carolina, by Watkins against Willison* for a. tract of land containing six hundred acres, on the Savannah river. This land was originally granted to James Parsons, who conveyed to Ralph Phillips, .whose estate was confiscated by an act of assembly of South Carolina, and vested in five commissioners appointed by the legislature of that átate. The five commissioners acted in execution of the'law, but before, any conveyance was made of . the land in question, one of them had died, and two of the others had ceased to,act,-or resigned. in 1783. The' two remaining commissioners, in 1788, conveyed -this land to' Daniel Bordeaux and R, Newman, who in the same year executed to the treasurer of the state, a bond and mortgage to secure the payment, of the purchase money, .which, pursuant to an act of assembly passed for that purpose in 1801, Was transferred and delivered to Ralph S. Phillips, the son of Ralph Phillips, to be disposed of as he should think proper; and by the same law the confiscation act, so far as respected Ralph Phillips, was repealed. A suit was brought on this bond in the name of the treasurer of the state *46 in 1803, against Daniel Bordeaux, and prosecuted to final judgment against his administrators in 1817, when an execution issued, on which the land was sold and conveyed by deed, from the sheriff to Anderson Watkins, the plaintiff in the circuit court, who claims by virtue of the sheriffs deed, and as standing in the relation of landlord to the defеndant.
Samuel Willison, the father of the defendant, entered into possession of the premises in question in 1789, and cultivated them till his death in 1802; from which time his widow and children possessed them, till her death in 1815; since which time the children have retained possession by their tenants, till the commencement of this suit.
In 1802, Ralph S. Phillips, who was then the assignee of the bond and mortgage, made a demand of the possession from the widow, who refused to give it up, and set up a title in herself. He brought an action of trespass against her to try titles in January 1803, in which he was nonsuited in November 1805; and in March 1808 he brought another action of the same nature against her, in which no proceedings were had after 1812, which, by the law and practice of South Carolina, operates as a discontinuance of the action.
In 1792 Bordeaux, the mortgagor, executed to Willison a power of attorney authorising him to take possession of the land, and sue trespassers. Willison was then a tenant of Bordeaux.
In 1793 they were in treaty for the sale of the land; Bordeаux wanting to sell, and Willison to purchase. But during the life time of Willison, Bordeaux was apprised that he claimed to' hold the land by an adverse title. The defendant exhibited no title other than what is derived from the possession of his father and the family.
The first question which arose at the trial, was on the admission in evidence of the deed from the two commissioners to Bordeaux and Newman; the defendant alleging, that no title passed by it, because it was not signed by the other two commissioners. The circuit court overruled the objection ; the deed was read, and this becomes the subject of the first error assigned in this court.
As the court have been unable to procure the confis *47 cation act of South Carolina, we are unwilling to express any opinion on this exception without examining its provisions, which are very imperfectly set out in the record; and as the merits.of the case can be decided on another exception, we do not think it necessary to postpone our judgment.
The remaining exception is, that the circuit court erred in charging the jury, that the claim of the-plaintiff was not barred by the act of limitations of South Carolina, which protects a possession of fivé years from an adverse title.
It appears from the record, that the defendant and his family have been in possession of this land 'for thirty-three years next before this suit was brought; but whether that possession has beep adverse to the title of the. plaintiff during the whole of that time, or süch part Of it as will bring him within the protection of this law, becomes a very important inquiry.
The plaintiff contended, at the trial, that, by bеcoming the tenant of Bordeaux, Willison the elder and his heirs, so long as they remain in possession, are prevented from setting up any title in themselves, or denying that of Bordeaux; without first surrendering to him the possession, and: then, bringing their suit. That the possession of the tenant being the possession of the landlord, he' could do no act by which it could become adverse,-so that the statute of limitations would begin to run in his favour, or operate to bar his claim, by any lapse of time, however long.
The defendant, on the other hand, contended, that from the tipie of thе disclaimer of the tenancy by Willison, and the setting up of a title adverse to Bordeaux and with his knowledge, his possession became adverse, and that he coúíd avail himself of the act of limitations if no suit Was brought within five years thereafter.
It is an undoubted, principle of law fully recognised by this court, that a tenant cannot dispute the title of his landlord, either-by setting up a title in himself, or a third person^ during the existence of the lease or.tenancy,. The principle of estoppel applies to the rеlation between them, and operates in its full force to prevent the tenant from violating that contract bv which he obtained and holds possession.
If there is any case which could clearly illustrate the sound policy of acts of repose and quieting titles and possessions by the limitation of actions, it is in this. "Here was no secret disclaimer, no undiscovered fraud ;it was'known to Bordeaux, and was notice to him that Willison meant to hold from that time by his. owp title and on adverse possession.- This terminated the tenancy as to him, and from that time Bordeaux had a right to eject him as a trespasser. Adams on Eject. 118. Bull. N. P. 96. 6 Johns. Rep. 272.
Had there been a formal lease for á term not then expired; the lessee forfeited it by this act of hostility; had it been, a lease at will from year to year, he was entitled to no notice to quit before an ejectment. The landlord’s action would be as against a trespasser; as much so as if no relation- had ever-existed between them.
*49 Having thus a right to consider the lessee as. a wrong;doer, holding adversely, we think that under the circumstances pf this case the lessor was bound so to do. It would bе an anomalous possession, which as to the rights of one party was adverse, and as to the other fiduciary, if after a disclaimer with' the knowledge of the landlord, and attornment to a third person, or setting up a-title in himself, the tenant, forfeits his possession and all the benefits of the lease he ought to be en ' titled to, such as result from his known adverse possession. No injury can be done the landlonTunless by his own laches. If he sues within the period of the act of limitations he must recover: if he suffers the time to pаss without suit, it is but the common case of any other party who loses his right by negligence and loss of time.
As to the assertion of his claim, the possession is as adverse and as open to his action, as one. acquired originally by wrong; and we cannot assent do the proposition that the possession shall assume such character as one party alone may choose to give it. The act is conclusive on the tenant. He cannot make his disclaimer and adverse claim, so as to protect himself during the unéxpired term of the lease : he is a trespasser on him who has the legal title. The relation of landlord and tenant is dissolved, and-each party is to stand upon his right.
It is on this principle alone that the plaintiff could claim to recover in this action. If there was between him and the defendant an existing tenancy at the time it was brought, he had no right of entry . The lessee cannot be a trespasser during the existence of the lease, and cannot be turned out till its termination. At the end of a definite term the lessor has his election to consider the lessee a trespasser and to enter on him by ejectment; but if he suffers him to remain in possession, he becomes a tenant at will, or from year to year, and in either case is entitled to a notice to quit before the lessor can eject him. The notice terminates the term, and thenceforth the lessee is a wrongdoer and holds at his peril. Woodfall’s Land. & Ten. 218, 220. 2 Serg. & Rawle, 49.
If the tenant disclaims the tenure, claims the fee adversely in right of a third person or his own, or attorns to another, his *50 possession then becomes a tortious one, by the forfeiture of his right. The .landlord’s right of entry is complete, and he may sue at any time within the period of limitation; but he must lay his demise óf a day subsequent to the termination of the tenancy, for before that he had no right of entry. By bringing, his ejectment, he also affirms the tenancy and goes for theTorfeiture. It shall not be permitted to the landlord to thus admit that there is' no tenure- subsisting between him and defendant which can protect his. possession from his adversаry suit, and at the same time recover on. the ground of there being a tenure so strong that he cannot set up his own adversary possession. .
The plaintiff claims without showing any title in himself, pr any right of possession, except what exists from the consequences of a tenancy, the existence pf which he denies in the most solemn manner, by asserting its termination before suit brought.
The principle here asserted i$ not new in this court. In the case of Blight’s lessee vs. Rochester, 7 Wheat, 535, 549, the plaintiff’s, lessors, claimed as hеirs of John Dunlap: the defendant claimed by purchase from one Hunter, who professed to have purchased from Dunlap.' The defendant acknowledged the title of Dunlap as the one under which he held. Dunlap had in fact no title; but the plaintiffs insisted that the defendant could not deny his title. The Chief Justice, iff giving the opinion of the court,, observes: If he holds under an adversary title to Dunlap, his right to contest his title is admitted. . If he claims under a sale from Dunlap, and Dunlap himself is compelled to aver that he doеs, then the plaintiffs themselves assert a title against this contract. Unless they, show that it'was conditional and that the condition is broken, they cannot, in the very act of disíegarding it themselves, insist that it binds the defendant in good faith to acknowledge a title which has no real existence.
We . are not aware that in applying this doctrine to the case now before the court we shall violate any-settled principle of the common law.
If a different rule was established, the consequences Would be very sеrious. A mortgagee, a direct purchaser from a *51 tenant, or one who buys his right at a sheriff’s sale, assumes His relations to the landlord with all their legal consequences, and they are as much estopped from denying the tenancy. If no length of time would protect a possession originally , acquired under a,lease, it would be productive of evils truly alarming, and we must be convinced beyond a doubt that the law is so settled before we could give our sanction to such a doctrine.
An examination of the authorities on this point relieves our minds from all such apprehensions, by finding.our opinion supported tó its full .extent bv judicial decisions entitled to the highest respect, and which we may safely adopt as evidence of the common law.
The case Of'Hovenden vs. Lord Annesley was that of a tenant who had attorned to One claiming adversely to his lessor with his knowledge. Ip delivering his opinion, Lord Redesdale entered into a detailed view of the decisions on the application of the act of limitations to trusts of real and pеrsonal estate in courts of law and chancery, and to fiducial/ possessions generally. On the point directly before us he observes : “That the attornment will not affect the title of the lessor so long as he has a fight to consider the person holding possession as his tenant. But as he has a right to punish the acts of his tenant in disavowing the tenure by proceeding to eject him, notwithstanding his lease; if he will not proceed for the forfeiture, he has no right to affect the rights of third persons on the ground that the pоssession was destroyed, and there must pe a limitation to this as well as every other demand. The intention of the act of limitations being to quiet the possession of lands, it would be curious if a tenant for ninety-nine years, attorning to a person insisting he was entir tied, and disavowing tenure to the knowledge of his former landlord, should protect the title of the original lessor for the term of ninety-nine years. That would, I think, be too strong to hold on the ground of- the possession being in the lessor, after the tenure had been disavowed to the knowledge of the lessor.”
The relation between tenants in common 'is, in principle, very similar to that between lessor and lessee: the possession *52 of orie is the possession of the other, while ever the tenure is acknowledged.. Cowp. 217. But if one ousts the other, or denies the tenure, and receives the rents and profits to his exclusive use,- his possession becomes adverse, and the act of limitations begins, to run. 2 Scho. & Lef. 628, &c. and cases cited. 4 Serg. & Rawle; 570. The possession of .a trustee is the possession of the' cestui que trust, so long as the trust isacknowledged; but from the time of known disavowal it becomes adverse. So of a mortgagee, while, he admits himself to be in-as mortgagee, and therefore liable to redemption. 7 Johns. Cha. 114, &c. and cases cited. But if the right of redemption is-not foreclosed within twenty years, the statute may be pleaded; and so in every case of an equitable title, not being the case of a trustee, whose possession is consistent with the title’of the claimant. 7 Johns. Cha. 122.
After elaborately rеvievving-'the English decisions on these and other analogous subjects, chancellor Kent remarks, it is easy to perceive that the doctrines here laid down are the same that govern courts of law. in- analogous case.s, and the statute of limitations receives the same construction and application at law and in equity. Kane vs. Bloodgood, 7 Johns. Cha. 90, 122. It is equally said that fraud as well as trust are not within the statute, and it is well settled that the statute does not run until the discovery of the fraud; for the title to avoid it does not arise until then; and pending the concealment of it, the statute ought not to run. But after the discovery of the fact imputed as fraud, the statute runs as in other cakes; and he cites in support of this position, 1 Browne’s Parliament. Cases, 455. 3 P. Wms, 143. 2 Scho. & Lef. 607, 628, 636, and the cases cited.
In the case of Hughes
vs.
Edwards,
All these principles bear directly on the case now before us, they are well settled and unquestioned rules in áll courts of law and equity, and necessarily lead to the same, conclusion'to which this Gourt lias arrived. The relations created by a lease are not more sacred than those of a trust or a mortgage. By setting up or attorning to a title adverse to his landlord,, the tehant commits a fraud as much as by the breach of any other trust. Why then should not the statute protect him, as well as any other fraudulent trustee, from the time the fraud is discovered or known to the landlord 9 If he suffers the tenant to retain possession twenty years after a tenancy is disavowed, and cannot account for his delay in bringing his suit; why should he be exempted from the operation .of the statute more than the mortgagor or the mortgagee 9 We can perceive no good reasons for allowing. this peculiar and exclusive privilege to a lessor; we can find no rule of law or equity which makes it a matter of duty to do it, and have no hesitation in deciding that in this case the statute of limitations is a bar to the plaintiff’s action.
In doing this we do not intend to dispute the principle of any case adjudged by the supreme court of South Carolina. Of those which have been cited in the argument there are .n<?ne which in our opinion controvert any of the principles here laid down, or profess to be founded on any local usage, common law, or construction оf the statute of limitations of that state. One has been much pressed upon ús, as establishing a doctrine which-woiild support the position of the plaintiff, which deserves some notice. In the case in 1 Nott
&
M’Cord, 374, the court decide, that where a defendant enters under a plaintiff, he shall not dispute his title while he remains in possession, and that he must first give up his possession, and bring his suit to try titles. To the correctness of this principle, we yield our assent, not as one professing to be peculiar to South
*54
Carolina, , but аs a rule of the common law applicable to the cases of fiduciary possession before noticed. It' is laid down as a general rule, embracing in terms tenants in common, trustees, mortgagees and lessees, but disallowing none of the exceptions or limitations Which qualify it and exclude from its operation all cases where the possession has become adverse, where the party'entitled to it does not filter or sue within the time of the statute of limitations, Or givf any good reason for his delаy; leaving the rule in full force wherever the suit is brought within the time prescribed by law. To this extent, and this Only, the decision would reach. To carry it further would be giving a more universal application than the courts of South Carolina would seem to have intended, and further than wé should be warranted by the rules of law. To extend it to cases of vendor and vendee would be iii direct contradiction to the solemn decision in
In relation to the limitation of actions for the recovery of réal property, we think it proper tо apply the remarks of the learned judge who delivered the opinion of this court in the case of Bell
vs.
Morrison,
It Is therefore the opinion of thе court that the plaintiff in error has sustained his fourth exception, and that the judgment of the circuit.court must be reversed. The cause is remanded to the circuit .court with directions to award a venire de novo.
Mr Justice Johnson.
Had I felt myself at liberty in the court below,"to act upon my own impressions as to the. general doctrine respecting the defence which a tenant might legally set up in ejectment brought against him. by bis landlord, I-certainly should have left it to the jury to inquire; Whether the possession of Willison ever was hostile to that of Bordeaux; a fact, the evidence *55 to prove which was very trifling, , as appears even in this bill of exceptions. But there were produced to me official reports of adjudged cases in that state, by the courts of the last resort, which appeared fully to establish that when once a tenancy was proved, the tenant could make no defence, but must restore possession, and then alone could he avail himself of a title derived from any source whatever, inconsistеnt with the relation of tenant. Now it ought not to be controverted, that, as to what are the laws of real estate in the respective states, the decisions of every Qther state in the union, or in the universe, are worth nothing against the decisions of the state where the land lies. On such a subject we have just as much right to repeal their statutes as to overrule their decisions.
I will repeat a few extracts froth one of their decisions to show, that they will at least afford an apology for the opiniоn expressed in the bill of exceptions upon the law of South Carolina; for I placed it expressly on their-decisions, not my own ideas of the general doctrine.
The case of Wilson vs. Weatherby, 1 Nott & M’Cord’s Rep. 373, was an action to try title, just such as the present, and heard before Cheves, Justice, in July 1815. The defendant offered to go into evidence to show a title in himself, to which it was objected, that as he had gone into possession under the plaintiff, he could not dispute-his title. Thepbjéction was sustained, and á verdict given for the plaintiff. The cause was then carried up to the appellate court, and the judgment below sustained, that court unanimously agreeing the law to be as laid down by the judge who delivered the opinion, in these terms: “ The evidence offered by. the defendant was of a title acquired by him after he went into possession under the plaintiff, and before he gave up possession. If he was at any timelhe tenant of the plaintiff, he continues so all the timo, unless he had given up the possession.- The attempt to evade the rule of law by going out of possession a moment, and then returning into possession, did hot change his situation at all, and especially as he left another person in possession, so that his possession was altogether unbroken. A- distinct and bona fide abandonment of the posses *56 sion at least was necessary to have put him in a situation to dispute the plaintiffs title. On the last ground, that the defendant was not at any time the tenant of the plaintiff, the defendant was not indeed a tenant under a lease rendering rent, but he nevertheless held under the plaintiff. This ground is founded on a misconception of the principle, which is not confined to the cases of tenants in the common acceptation of- the term. These cases have only furnished examples of the application of the principle, which is,' that wherever a defendant has entered into possession under the plaintiff, he shall not be permitted, while he remains in possession, to dispute the plaintiff’s title. He has a right to purchase any title he pleases, but he is bound, bona fide, to give up possession, and to bring his aсtion on his title, and recover by the strength of his own title.”
This is the leading case upon this doctrine in that state, and it is fully settled there, that the wifé, the executpr, the heir or the purchaser at sheriff’s sale, is identified in interest with the previous possessor; as also that a statutory title is acquired by possession, under which one subsequently going out of possession, may recover.
Understanding such to be the law of that state, I certainly did not hold myself bound or at liberty to inquire whether it accorded with the rules of decision in any other stаte. In principle, I am under the impression there is not much difference, or at least not more than that court was at large to disregard if they thought proper.
This cause came on to be' heard on the transcript of the record from the circuit court of the United. States for the district of South Carolina, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hei'eby remanded to the said circuit court, with directions to award a venire facias de novo.