Lead Opinion
FROM GRAFTON CIRCUIT COURT. There is no pretence that there has been a determination of the plaintiff's title since the letting, or an eviction, either actual or constructive, by one having a title paramount to that of the plaintiff. It is not claimed that the letting took place, or that rent has been paid by the defendant, under a mistake or misapprehension of the state of the title, much less by reason of any misrepresentation or fraud on the part of the plaintiff. I think the defendant is estopped, in this action for the recovery of rent, to deny the plaintiff's title. See 6 Am. Law Rev. 1; Bigelow on Estoppel 372, et seq.
Concurrence Opinion
The case finds that the plaintiff had bought and paid for the property and his tenant's possession, at least during the lifetime of the defendant's testator. The plaintiff, then, had had possession by himself, or by his tenant, until 1872, when the defendant's testator died. A payment in full for the property, and possession and occupation under the purchase thirteen years, would, I believe, be a sufficient part performance to enable the court to enforce a specific performance, and, on the filing of a bill for that purpose, to enjoin the devisee, if he had been other than the tenant, from interfering with the tenant's possession. I cannot see, therefore, that there has been any interference with the tenant's possession under the plaintiff's lease, which can relieve him from the ordinary rule which forbids the tenant to deny the landlord's title.
Concurrence Opinion
No principle is better established than that a tenant shall not be permitted to deny the title of his landlord in an action for use and occupation. It is a rule founded in good faith as well as public *Page 17
policy. Cooke v. Loxly, 5 T. R. 4; Bolls v. Westwood, 2 Campb. 11; Lessee of Galloway v. Ogle, 2 Binn. 468; Binney v. Chapman, 5 Pick. 124; Hill v. Boutell,
The defendant claims that during the lease he acquired a superior title to the premises as heir and devisee of Isaac Bullock; but neither the validity of his will, nor of that title, can be inquired into in this suit. The plaintiff has held the possession of the premises since 1859, under a parol agreement to take a conveyance of the same, and the defendant has occupied the premises since 1871 as his tenant, under an agreement to pay him rent by the month. This action (assumpsit for rent) does not depend on the validity of the plaintiff's title to the estate, but on a contract between the parties, either express or implied. Codman v. Jenkins,
The plaintiff is entitled to
Judgment on the report.