veyed to the landlord, and that the actual title is vested in another person (i). Therefore the tenant of glebe land is not allowed, in an action for use and occupation, to show a simoniacal presentation of the plaintiff, his landlord (k). And where the defendant came in under the plaintiff, he cannot set up as a defence that the plaintiff's title has expired, unless he solemnly renounced such title at the time, and attorned to the party having the title (1). So where a party under a fraudulent pretence borrowed the keys of a house from another, and then retained the possession, it was held that he could not dispute the title of the lender in an action of ejectment, so as to maintain his own possession (m). And where a tenant took premises from F. and B., as agents for the trustees of the joint estates of J. S. B., it was held, in an action by the plaintiffs, as trustees of the joint estate of J. and S. B., that the tenant, the defendant, was estopped from insisting that the plaintiffs were trustees for the estate of S. B. only (n). And if the lessee be estopped, so is his assignee (o); or a person obtaining his possession by contract with the tenant (p); or the wife of a lessee holding over after his decease (q).

And a tenant cannot, in an action for use and occupation, dispute the title of his landlord's assignee: if a due conveyance from the landlord, and notice thereof to the tenant, be proved, and he remain in possession, the estoppel holds in favour of the assignee, if it would obtain in favor of the landlord (r). And it holds in favour of a reversioner whose interest was the same as that of a tenant for life deceased, to whom the defendant was

(i) Parry v. House, Holt, 489; Doe d. Johnson v. Bayiup, 4 Nev. & M. 837; 3 Ad. & E. 188; 1 Harr. & W. 270, S. C.

(k) Cooke v. Loxley,
T. R. 5;
Lewis v. Willis, 1 Wils. 314; Bul. N.
P. 139.

(1) Balls v. Westwood, Camp. 11; see Burne v. Richardson, 4 Taunt. 720; post, 334, note (e); Rogers v. Pitcher, 6 Taunt. 202; 1 Marsh. 541, S. C.; Gravenor v. Woodhouse, 1 Bing. 38; see Hopcraft v. Keys, infra. But in a defence to an ejectment, it may be shown that the parties under whom the plaintiff claims had no title when they conveyed to him, although the defendant himself claims by a conveyance from the same parties, if the latter con

veyance was subsequent to that which the defendant seeks to impeach; Doe d. Oliver v. Powell, 1 Ad. & E. 531; 3 N. & M. 616.

(m) Doe d. Johnson v. Baytup, 4 Nev. & M. 837; 3 Ad. & E. 188; 1 Harr. & W. 270, S. C.

(n) Fleming v. Goding, 4 M. & Scott, 455; 10 Bing. 549, S. C.

(0) Taylor v. Needham, 2 Taunt. 278; see Doe d. Williams v. Morris, 6 B. & C. 41; 9 D. & R. 30, S. C.

(p) Doe d. Bullen v. Mills, 1 Nev. & M. 25; 2 Ad. & E. 17; 1 M. & Rob. 385, S. C.

(q) Doe d. Leeming v. Skirrow, 2 Nev. & P. 123; Ad. & E. 157, S. C. (r) Rennie v. Robinson, 1 Bing. 147; 7 Moore, 539, S. C.

tenant (s). But where the plaintiff is not the person who originally let the premises to the defendant, the plaintiff can only recover rent from the time he had the legal title in him, although he may have had the equitable estate long before (t). A tenancy shall not be implied under a party who has not the legal estate (u).

In general the payment of rent, though it impliedly admits a tenancy, and consequently a title to demise, is not conclusive, but only strong primâ facie evidence against the tenant of the landlord's title (v). If the rent has been paid under a misrepresentation or mistake, the tenant is not estopped from resisting further payment after discovering such misrepresentation (w). So the payment of rent, and an agreement to give up possession to an assignee, may be shown to have been in ignorance of a prior act of bankruptcy, rendering the assignment void (). And the payment of rent by a lessee to a lessor after the title of the latter has expired, and after the lessee had notice of an adverse claim, does not amount to an acknowledgment of title in the lessor, or to a virtual attornment; unless at the time of payment the lessee knew the precise nature of the adverse claim, or the manner in which the lessor's title has expired (y). So the effect of an attornment may be destroyed by the non-claim of rent for several years, and by showing a strong ground to suspect the title of the party to whom the attornment was made, particularly if it was not given voluntarily, but to prevent the continuance of an ejectment (z).

In Cornish v. Searell (a) it appeared that A. being tenant of premises under a lease from B., a sequestration issued against the latter out of Chancery. A. then signed the following instrument:" I hereby attorn and become tenant to C. and D., two of the sequestrators named in the writ of sequestration, issued

(s) Doe d. Whitroe, 1 D. & R. N. P. R. 1.

(t) Cobb v. Carpenter, 2 Camp. 13, n.; and cases, supra, note (b).

(u) Morgell v. Paul, 2 M. & R. 303; Cornish v. Searell, 8 B. & C. 471, 475.

(v) Fenner v. Duplock, 2 Bing. R. 10; 9 Moo. 38, S. C. Sed vide Coo per v. Blandry, 4 M. & Scott, 562; where the payment of rent was made in satisfaction of a distress for rent, made on the tenant in possession, and was held to amount to an estoppel.

(w) Rogers v. Pitcher, 1 Marsh. 541; 6 Taunt. 202, S. C.; Gregory v. Doidge, 3 Bing. 474; 11 Moo. 394, S. C.; Brook v. Biggs, 2 Bing. N. C.

572.

(x) Doe d. Plevin v. Browne, 7 Ad. & E. 447; 2 N. & P. 592, S. C. (y) Fenner v. Duplock, 2 Bing. 10; 9 Moo. 38, S. C.

(z) Gravenor v. Woodhouse, 7 Moo. 289; and see Linsey v. Edwards, 5 Ad. & E. 95; 6 Nev. & M. 633, S. C. (a) 8 B. & C. 471.

in the said suit in Chancery, and to hold the same for such time and on such conditions as may be subsequently agreed upon." It was held that this was an agreement to become tenant; and that the defendant not having received possession of the premises from C. and D., might dispute their title; and that the lease not being proved to have been surrendered, was an answer to the action. Mr. Justice Bayley observed, "It has been said that the defendant having agreed to become tenant to the plaintiffs cannot dispute their title. If the defendant had received possession from them, he could not have disputed their title. In Rogers v. Pitcher (b) and Gravener v. Woodhouse (c), 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 cannot (except under very special circumstances) dispute the title; in the latter he may." But if a party take a lease from a receiver appointed by Chancery, by which rent is reserved to such receiver, or any future receiver, he cannot successfully plead non tenuit in replevin (d).

Although a tenant cannot in general object that his landlord never had any title, yet he may in some cases show in ejectment, &c., that it has expired (e); as that the landlord has mortgaged the premises (ƒ). And where the defendant, having only a defeasible title, demised to the plaintiff for years, and before the first quarter's rent was due, the plaintiff was evicted by a title paramount to the defendant's, and remained out of possession for

(b) 6 Taunt. 202. (c) 1 Bing. 38.

(d) Dancer v. Hastings, 4 Bing. 2; 12 Moo. 34, S. C.

(e) England d. Syburn v. Slade, 3 T. R. 692; Doe d. Jackson v. Ramsbotham, 3 M. & Sel. 516; Alchorne v. Gomme, 2 Bing. R. 54, 61; Hopcraft v. Keys, 2 M. & Scott, 760; 9 Bing. 613, S. C.; Fenner v. Duplock, ubi supra ;

Gravenor v. Woodhouse, 7 Moo. 289. May show in covenant on a lease by husband and wife, reserving rent to her heirs, that the estate was the wife's, and that she died, and her heirs claimed the rent, and threatened to evict, &c.; Hill v. Saunders, 7 D. & R. 17; 4 B. & C. 529, S. C. May in replevin plead to avowry for

rent that the tenant held for the whole of avowant's term, so that the latter had no reversionary interest after the term granted to plaintiff; Pascoe v. Pascoe, 3 Bing. N. C. 898; 5 Scott, 117, S. C. But it is no defence to an action on a lease by the trustee of a party who has become bankrupt, that the defendants, the lessees, have performed their covenants with the assignees of the cestui que trust; Britten v. Britten, 2 C. & M. 597; 4 Tyr. 473.

(f) Doe d. Marriott v. Edwards, 5 B. & Ad. 1065; Waddilove v. Barnett, 4 Dowl. S47; 2 Bing. N. C 538; 2 Scott, 736, S. C.; and see Pascoe v. Pascoe, 3 Bing. N. C. 898; 5 Scott, 117, S. C. post, 335, note (k).

some weeks, and then entered under a new demise from the owner of the premises; it was held that the defendant could not legally distrain, and that the eviction might be shown on non tenuit (g). It is a good plea to an action by a landlord for rent, that the ground landlord (h), or the grantee of an annuity (i), or a mortgagee (k), of the landlord, claimed the arrears, and that the tenant paid them to such party, under a threat of distress or eviction.

2. OF THE TENANT'S LIABILITY TO REPAIR.

In the absence of an express agreement so to do, a tenant from year to year is not bound to make substantial and lasting or general repairs, such as putting a new roof on an old worn-out house. He is only impliedly liable to make slight and tenantable repairs, sufficient to keep the premises "wind and watertight;"() such as putting in windows or doors that have been broken by him, so as to prevent obvious waste and decay of the premises (m). In a recent edition of Woodfall's Law of Landlord and Tenant (n), it is laid down that such a tenant "is only liable where an injury happens to the premises through voluntary negligence, and not for injuries arising from accidental fire, wear and tear of time, or the like." This appears to be the true principle. A tenant from year to year is liable if he omit to adopt reasonable and usual precautions to obviate, at a slight expense, the occurrence of great and manifest injury to the premises. If a window or tile were even accidentally broken, it seems that he would be liable if he did not repair it, if the plain consequence of his neglect would be a serious damage to the house from wet, &c. (o).

(g) Hopcraft v. Keys, 2 M. & Sco. 760; 9 Bing. 613, S. C.; and see Neale v. Mackenzie, 1 M. & W. 747.

(h) Sapsford v. Fletcher, 4 T. R. 511. As to the landlord's implied promise of indemnity against the superior or ground rent, see Schlenker v. Morsy, 3 B. & C. 789; 5 D. & R. 747, S. C.; Carter v. Carter, 5 Bing. 406; 2 M. & P. 732, S. C.; Evans v. Curtis, 2 C. & P. 296; Hancock v. Caffyn, 8 Bing. 353.

(i) Taylor v. Zemira, 6 Taunt. 527. (k) Pope v. Biggs, 9 B. & C. 245; Johnson v. Jones, 1 P. & Dav. 651; Waddilove v. Barnett, 2 Scott, 736; 2

A declaration that "in consideration that the defendant had become and was tenant to the plaintiff of a certain messuage, &c. he undertook to keep the place in good tenantable repair, to uphold and support, and to leave the premises in the state he found them," is bad; such an undertaking not resulting from the relation of landlord and yearly tenant (p). But where a tenant occupies premises and pays rent under a lease void by the statute of frauds, he becomes liable to repair such premises according to the covenants contained in the lease (q). So a tenant who holds over after the expiration of a valid lease, and becomes