1842. CLARIDGE v. MACKENZIE. "Who shall be considered as landlord is a consequence to be deduced from the acts of the parties, and is not to be doled away at pleasure." And Dampier J. added, "The tenant in possession paid rent to the lessor, and then disclaimed. But he ought to give back the possession to the lessor, and after that the defendant may have her ejectment. It has been ruled often, that neither the tenant, nor any one claiming by him (a), can controvert the landlord's title. He cannot put another person in possession, but must deliver up the premises to his own landlord." Suppose A. were to hold as tenant from year to year of B., the freeholder B. dies, and A. then enters into another contract of tenancy with C., the eldest son of B. believing him to have title, and pays him rent, and afterwards finds out that he is illegitimate, can he dispute C.'s title? [Erskine J. That appears to be this very question.] In Phipps v. Sculthorpe (b) where premises had been let to B. for a term determinable by a notice to quit, and pending such term, C. applied to A. the landlord, for leave to become the tenant instead of B., and upon A. consenting, agreed to stand in B.'s place, and offered to pay rent; it was held that (though B.'s term had not been determined, either by a notice to quit or a surrender in writing) A. might maintain an action for use and occupation against C., and that the latter could not set up B.'s title in defence to that action. The argument on the other side is, that at the time the plaintiff acknowledged the title of the defendant, he was not aware that she had none in fact; and that when he finds that out he may dispute her title. But that is not so; and the cases cited shew he was bound, either formally to disclaim the possession, or to surrender to her. It is not like the case of a mere at (a) Vide suprà, 147 (b). (b) 1 B. & Ald. 50. tornment to a party having no title; it is tantamount to being actually let into possession. 1842. CLARIDGE v. TINDAL C. J. This is an action of trespass brought MACKENZIE. for two distresses; the first for a year's rent claimed by the defendant to be due from the plaintiff at Midsummer 1840; the second for a quarter's rent at Michaelmas in the same year. The question in the case is, whether the plaintiff, who now disputes the legality of these distresses, is at liberty to do so, or whether he is not precluded by a rule of law, that a tenant cannot dispute the title of his landlord. There is no doubt, upon the evidence, that the defendant had, in point of fact, no title whatever to the premises in question after Midsummer 1838. The Duke of Portland's reversionary estate did not accrue till old Lady-day 1839; the mediate interest being vested in some one else, but in whom it did not very clearly appear (a), nor is it material. It appears to me that this case does not fall within the rule adverted to; and that upon two grounds. First, upon the ground that there was no new taking of the premises by the plaintiff, or any letting into possession by the defendant; and secondly, that even assuming there was such a new taking or letting into possession, it was left by me to the jury to say, whether the transaction took place on the part of the plaintiff without a knowledge of the circumstances, and that the jury found such to be the case. Upon the first point, I think it was competent for the plaintiff to show that the defendant's title had expired. The plaintiff was in possession of the premises; and after the expiration of the defendant's interest, he con (a) Probably this small reversionary interest was not worth the liability to which a Ꮮ Ꮞ claimant would have subjected 1842. CLARIDGE v. tinued to occupy, as tenant by sufferance under the party who was entitled to the intermediate term of three quarters of a year. The witness Richards speaks of a new MACKENZIE. agreement having been entered into between the plaintiff and the defendant, that the former should continue in possession as tenant to the latter: but there was no new possession given by the defendant; she was in no way prejudiced; she could not have turned the plaintiff out of possession; and before their agreement, if she had brought her ejectment, the plaintiff might have shewn that she had no title, and that the title was in some one else. It is not like the case of a person letting another into possession of vacant premises; it is in fact a remaining in possession of premises which had been formerly occupied by the tenant. It is said, indeed, that this makes no difference, and that the facts of this case amounted, in law, to a new letting into possession; and the case of Balls v. Westwood (a) was cited as an authority to shew that where a party has come in under another, the former cannot 'shew that the title of the latter has expired without solemnly renouncing such title, and commencing a fresh holding under another person. But though such appears to have been Lord Ellenborough's opinion in that case, his opinion was subsequently altered; for in Doe dem. Lowden v. Watson (b) that learned judge held that a defendant in ejectment, who had paid rent to the lessor of the plaintiff, might shew that his landlord, pending the term, had sold his interest in the premises; that is, in effect, the tenant was allowed to shew an alteration in his landlord's title. So, in England dem. Syburn v. Slade (c), which was ejectment by a landlord against a tenant whose term had expired, it was held that the latter was not barred from shewing that his landlord's title had expired. And in (a) 2 Campb. 11.; and see Keilwey, 65. (b) 2 Stark. N. P. C. 230. (c) 4 T. R. 682. effect all that the plaintiff proposes to do in this case is, to shew that the defendant had at one time a good title, which has since expired. 1842. CLARIDGE V. But upon the other point, I cannot distinguish this MACKENZIE. case from that of Gregory v. Doidge (a), where the plaintiff in replevin had occupied lands under A., and upon A.'s death had entered into an agreement to pay rent to the defendant, and paid 1s. as an acknowledgment of his title, being ignorant that it was disputed. It turning out afterwards that the defendant had no claim to the property, this court was clearly of opinion that the plaintiff, having come into possession under a former owner, and having entered into the agreement in ignorance of the defect in the defendant's title, might, under a plea of non tenuit, shew that the defendant was not his landlord. (b) The tenant's right to dispute the title is there put in the most precise way, being raised by the express plea of non tenuit; and that case seems to me to embrace the case now before us. Upon the second ground therefore, supposing that there had been a new tenancy created after the expiration of the defendant's title, I think it clear that the plaintiff had a right to shew what were the circumstances under which he entered into the agreement with the defendant -a right to shew the jury that, at that time, he was ignorant of the real facts as to the defendant's title. Now, it is highly improbable that the defendant disclosed to the plaintiff that she had no right to the premises; for if she had, no man of common sense (c) would have taken her as his landlady; but, in fact, she then asserted, and even now stoutly maintains, her right to the premises. (a) 3 Bingh. 474. (b) See Williams v. Bartholomew, 1 B. & P. 326. (c) He would have placed himself in the position of being liable to pay the amount of the 1842. CLARIDGE บ. I left it to the jury to say, whether the agreement in question was entered into by the plaintiff with a full knowledge of the facts, or under a misapprehension as MACKENZIE. to their nature; and they, in effect, found the latter. I see no reason to be dissatisfied with their verdict; and the case of Gregory v. Doidge is an authority to shew that the direction to the jury was correct. Upon the whole, therefore, I am of opinion that the present rule must be discharged. COLTMAN J. I am of the same opinion. In the case of Doe dem. Higginbotham v. Barton (a), where a mortgagor in possession had demised the premises, and the tenants, having received notice from a party to whom their lessor had executed a second mortgage, had paid rent to him, the question was, whether the tenants could, in ejectment by such second mortgagee, dispute his title. Lord Denman C. J., in giving the judgment of the court, said, "It is clear that the lessor of the plaintiff never had any legal estate; and he must rely on the rule with regard to landlord and tenant. That rule is fully established: viz. that the tenant person by whom he was let into possession had title at that time: but he may shew that such title is determined. With respect to the title of a person to whom the tenant has paid rent, but by whom he was not let into possession, he is not concluded by such payment of rent, if he can shew that it was paid under a mistake." cannot deny that the In this case, therefore, if the plaintiff was not let into possession by the defendant, it is clear that he is not precluded from shewing that her title is at an end. What, then, is the meaning of being let into possession? The plaintiff, it is admitted, was not let into corporeal possession by the defendant; he had been let in by (a) 11 A. & E. 307., 3 P. & D. 194, |