Levenson Wrecking Co. v. Gatti-McQuade Co. 93 N. J. L. case to the jury, and was said to have resulted from a typographical error. The case having been fully tried upon the theory that the lease, if made at all, began August 1st, 1914, it was submitted to the jury upon that theory, without objection upon the part of the defendant. We, therefore, incline to think that what thus occurred was tantamount to an amendment of the pleadings at the trial without objection. Assuming, however, that this is not so, it ought not to result in a reversal. Where, as here, the real question in controversy has been fully and fairly tried, though not precisely pleaded, and the complaining party has not been surprised or injured, this court on appeal has the power to amend the pleadings in order to support the judgment, and will in such case, in the interest of justice, exercise the power. Chess v. Vockroth, 75 N. J. L. 665; Van Houten v. Van Houten, 89 Id. 301. We come now to the main contention of the defendant, which is, that the trial judge erred in refusing to permit the defendant to amend its answer by pleading that on May 4th, 1914, the plaintiff had conveyed to the Levenson Lumber Company the title to the premises demised to the defendant in June, 1914, and by excluding the record of the deed offered in evidence for that purpose. We think the point has no merit. In an action by a landlord to recover rent the tenant, as a general rule, is estopped to set up in defence the want of title. on the part of the landlord at the time the lease was made, so long as the tenant is undisturbed in his occupation of the demised premises. Cooke v. Loxley, 5 T. R. 4; 2 Rev. Rep. 521; 15 Eng. Rul. Cas. 297; Howell v. Ashmore, 22 N. J. L. 261; Horner v. Leeds, 25 Id. 106. This is not a mere technical rule, but is conformable to the contract between the parties; for so long as the tenant is not disturbed in his occupation, he is bound to pay the rent whether the landlord's title is defective or not. Of course, this general rule does not forbid the tenant from showing that the landlord's title has expired or been extinguished since the creation of the tenancy; nor does it pre 93 N. J. L. Levenson Wrecking Co. v. Gatti-McQuade Co. clude a tenant from showing that he has been evicted by the owner of the paramount title in an action by his landlord for subsequently accruing rent. But this case does not call for the application of these exceptions to or qualifications of the general rule. As we have pointed out, the defendant's possession of the demised premises was undisturbed. He, therefore, could not lawfully be permitted to show that the title of the plaintiff was rendered defective by a deed given before the parol lease sued upon was made. The cases cited by the defendant are not to the contrary. The first (Condit v. Neighbor, 13 N. J. L. 83) was upon a lease made to a husband and wife and the wife survived her husband and remarried; and it was held that the rents under the lease after the decease of the second husband did not belong to his representatives. The second (Abbott v. Hanson, 24 Id. 493) held that if a lessor parts with title, subsequent to the making of the lease, he cannot sue for rent thereafter due. The third (Mills v. Boylan, 22 N. J. L. J. 148) was where the plaintiff had acquired the title to the land subsequent to the date of the lease. The fourth (Messler v. Fleming, 41 N. J. L. 108) was upon the question of the right of a landlord to recover rent where he had lost title by foreclosure proceedings after the date of the lease. The first case cited has no relevancy to the present case. The last three are upon the well-established exception to the rule that a tenant is not estopped to deny his landlord's title where after the making of the lease sued on he parts with the title. As we have pointed out, we are not concerned here with that exception. The fact that the defendant was in possession as the tenant of the plaintiff under the first parol renewal of the written lease when the second parol lease was made is immaterial. The rule that one who goes into possession as a tenant of another is estopped to deny the title of the landlord at the time the lease was made, so long as the tenant is undisturbed in his occupation of the demised premises, applies equally to a case where the tenant was in possession under a prior lease at the time of making of the renewal lease sued upon, as well as where he takes possession under and by virtue of the latter. Levenson Wrecking Co. v. Gatti-McQuade Co. 93 N. J. L. The circumstance that the defendant removed from the premises on July 31st, 1914, as it contends, or on August 4th, 1914, as the plaintiff contends, is immaterial, Assume, as the defendant contends, that it vacated the premises on July 31st, the last day of the old term. If so, it did so voluntarily, when it might have remained for another year, as it had contracted to do. In that situation there would not be much appearance of justice in holding that it can defend against its engagement to pay rent by showing that there was a defect in its landlord's title. The true rule is, that a tenant who enters into a renewal of the lease under which he was in possession is estopped from denying his landlord's title at the time the renewal lease was made, even though the tenant vacates the premises on the last day of the old term, when he does so without the consent of the landlord and without any interference of his possession. The record of the deed of May 4th, 1914, purporting to be from the plaintiff to the Levenson Lumber Company, was offered in evidence for the purpose (stated at the trial) of showing that "since they have not the title they cannot collect the rents," and for no other purpose. We have already shown that it was incompetent for the purpose offered. It seems to be argued, now, that it was admissible for another purpose, and hence its rejection should lead to a reversal. Whether it was competent for any purpose is doubtful, but had it been received its reasonable effect in the direction indicated would be so slight that, under the circumstances, we think its rejection does not justify a reversal. Simon v. Henry, 62 N. J. L. 486. The judgment will be affirmed, with costs. For affirmance-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, JJ. 12. For reversal-None. 93 N. J. L. McAuliffe v. Metropolitan Life Ins. Co. MARY MCAULIFFE, ADMINISTRATRIX, &c., RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, AP PELLANT. Submitted December 9, 1918-Decided June 17, 1919. In an action on a life insurance policy, testimony of the widow of deceased that her husband "was not sick" before date of the policy, "never had any trouble for five years, as far as she knew, except to get a cold," held, insufficient to raise a jury question in contradiction to testimony of the attending physician that he had at such time treated deceased for chronic bronchitis and that he was afflicted by that disease. On appeal from the Supreme Court. For the appellant, Randolph Perkins. For the respondent, Thomas R. Armstrong. The opinion of the court was delivered by PARKER, J. The Supreme Court affirmed the judgment. of a District Court in a suit on three policies of insurance upon the life of Patrick McAuliffe, deceased, and the propriety of this affirmance is the question before us. We cenclude that it was erroneous upon three grounds. 1. The policies, all alike, contained a clause that "no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health;" and it appeared without dispute that on the respective dates of the policies the insured was not in sound health. 2. Each policy contained a clause making it void if the insured before its date "has had any pulmonary disease, or chronic bronchitis * * *" and it appeared without dispute that before the date of each policy the insured had had chronic bronchitis. 3. Each policy contained a clause making it void if the McAuliffe v. Metropolitan Life Ins. Co. 93 N. J. L. insured before its date had been attended by a physician for any serious disease or complaint; and it appeared without dispute that deceased before such date had been attended by a physician for chronic bronchitis. Usually, in this class of cases, the question is whether the insured has been guilty of fraud, or has made some false representation as an inducement to the issue of the policy. Such was the situation in Guarraia v. Insurance Company, 90 N. J. L. 682, relied on by respondent. But, in the case at bar, the determinative factor by the language of the policies is the existence of a physical condition in the insured, without any reference either to his knowledge of it or his statements on the subject. If at the date of any policy he was not in sound health, the policy never became a contract; if before the date of either policy he had had chronic bronchitis, or had been treated by a physician for any serious disease or complaint, the contract, if it came into being, was voided. The evidence of the attending physician of deceased, confirming his statements in the written proofs of death, was that he had treated the man for chronic bronchitis and asthma as early as November, 1915, and in January and March, 1916, and March, 1917. The policies were dated, respectively, November 20th, 1916; March 12th, 1917, and March 26th, 1917. There was no contradiction of this testimony. The plaintiff, widow of deceased, testified that her husband "died from a cold, as far as I know;" that he "was not sick;" never had any trouble, as far as she knew for five years, except to get a cold. Such testimony has no evidential value, justifying its submission to the jury on the question whether deceased had chronic bronchitis or was in sound health. He could well have been in unsound health, and have had chronic bronchitis, without being characterized as "sick." A reading of her testimony makes it plain that by "sick" she meant sick in bed, or, at least, unable to work. This testimony is of much the same character as that which we declared to be without value in Howe v. Northern Railroad Co., 78 N. J. L. 683, 685, 686. It constituted no |