SUMMARY - Disputing landlord's title, §§ 1, 2.— Effect of judgment in ejectment, § 3.— Covenant for abatement of rent, § 4.— Repairs, S§ 5, 6.— Deed of trust of leasehold property; rights of grantee, § 7.— Contract by correspondence construed, § 8.— Surrender of lease, § 9.— Capacity in which lessors contracted, § 10.- Contract for renewal; relief in equity, § 11. Stipulation held to be a condition, § 12.- Demand of rent, § 13.- Deed and lease for different parts of same property, § 14.

§ 1. A tenant cannot dispute the title of his landlord, either by setting up title in himself or in a third person during the existence of the lease or tenancy; but where the tenant disclaims holding under the landlord, and the landlord, having knowledge of such disclaimer, rests until the statute of limitations has run against him, the tenant will hold. Willison v. Watkins, $ 15-20.

§ 2. When a tenant disclaims his landlord before his lease has expired, this forfeits the lease, and he is not entitled to notice to quit; and if the landlord has knowledge of the disclaimer, he has a right to treat the lessee as a trespasser. Ibid.

§ 3. In Indiana, where a landlord sues in ejectment for the recovery of his estate as forfeited for non-payment of rent, and obtains judgment, this establishes the validity of the lease; that the tenant was in possession; that he was obliged to pay the rent reserved; that the instalments demanded were due and unsatisfied, which facts the tenant is estopped from denying. Sheets v. Selden, §§ 21-25.

§ 4. Where, on a lease of a water-power, specifying rates of abatement of rent for failure of water, the landlord obtains judgment against the tenant for forfeiture of his estate for nonpayment of rent reserved, the tenant must tender payment of the difference between the rents due and the abatement to which he was entitled for failure of water, before he can ask relief from the forfeiture. Ibid.

§ 5. A covenant that a landlord will make repairs is never implied. Ibid.

§ 6. A covenant with several lessors to keep premises in repair is joint, although the lessors hold in unequal proportions, and the rent is reserved to them severally in proportion to their several interests. Calvert v. Bradley, §§ 26, 27.

§ 7. Where a deed of trust is given of leasehold property, by the provisions of which the grantor or mortgagor is to retain possession until default, and the grantee or mortgagee never enters into possession under his deed, he is not chargeable with the covenants in the lease to his grantor. Ibid.

§ 8. The United States entered upon possession of premises, under a lease which consisted of the correspondence between the lessor and the agents of the government. By the terms of the agreement the premises were let for one year with the privilege of three, at a fixed rent, the premises to be used for "all purposes." Held, 1st, that the lessor could recover no damages on account of the premises having been used for a small-pox hospital; 2d, that the lessor having accepted, without objection, a reduced rate of rent after the first year, such acceptance was conclusive evidence of his assent to such a modification of the original agreement as to the rate of rent; 3d, that although there was no express covenant as to waste, the law implied one, and that the lessee was liable for the destruction of ornamental trees, fences, walls, etc., and the VOL. XXII-2

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quarrying and removal of stone and gravel by the soldiers, as voluntary waste; but that damages for injuries done by United States troops before the premises were entered upon under the lease could not be recovered in this action for rent in the court of claims; 4th, that there being no covenant to repair, the government as tenant was not liable for accidental damages, such as the destruction of the buildings by fire. United States v. Bostwick, §§ 28-36. § 9. A surrender of a lease is the yielding up the estate to the landlord so as to extinguish it by mutual consent, and may be either by express words by which such intention is manifested, or by some act which implies that both parties have agreed to consider the surrender as made. Where a lease was, executed to A. and B., C. being a silent partner with them although not mentioned in the lease, and A. withdrew, assigning his interest to B. and C., only one of the lessors being consulted; and later B. and C. assigned their interest to D., whom the lessors refused to recognize as tenant, all rent paid by him being accepted as due from B. and C., held, there having been no new writings executed, that there had been no surrender of the original lease. Beall v. White, $$ 37-39.

§ 10. Where lessors, in executing a lease, described themselves as a committee acting in behalf of a religious institution, but demised the lands in their individual capacity, the covenants of the lessee being to them as individuals, the lessee having entered upon and enjoyed the premises under the lease, held, in an action of covenant by the lessors, that the recital in the lease representing them as a committee was not inconsistent with their holding the legal title in trust, and that it was a fair inference from this language that they held some title in trust sufficient to warrant the execution of a lease and to estop the lessee from denying their title as lessors. Scott v. Rutherford, §§ 40, 41.

renew,

§ 11. A lease of property was executed for ten years, the lessor covenanting to renew the lease every ten years thereafter for a period of five hundred years, the rental for each term of ten years to be fixed by assessors appointed by the parties. The lessee, relying upon the covenant to made improvements on the demised premises costing over $100,000. But the lessor fraudulently prevented a renewal of the lease by appointing incompetent persons, and brought suit at law for use and occupation of the premises after the expiration of the first term. Upon bill brought by the lessee, the court ordered that, as the lessee was willing to have a renewal, the proceedings at law should be stayed until the lessor should appoint a competent and impartial assessor to determine the value of the rental for the second term. Tscheider v. Biddle, §§ 42-45. § 12. A stipulation in a lease to E., that in default of payment of rent "for any year during said term, said lease is to be void, and said property is at once to revest in me, or my heirs or assigns, without notice to the said E., in the same manner as if this lease had not been given,” is a condition, not a limitation, and gives the lessor the option to avoid the lease, by entry, but does not invalidate it proprio vigore. Wildman v. Taylor, §§ 46-48.

§ 13. To avoid a lease for non-payment of rent, there must be a demand of the precise sum due, at a convenient time before sunset, on the day when the rent is due, upon the land, in the most notorious place of it, even though there be no person on the land to pay. Thus a demand generally for rent due was held insufficient, and by reason of such insufficiency the possession of the demised premises was adjudged to belong to the assignee in bankruptcy of the tenant, and not to the devisees of the lessor. Ibid.

§ 14. Where a deed and lease were executed at the same time to the same grantee, the former conveying one-half of certain property, with a hat factory thereon, “also all the machinery situated in said factory, which was possessed and owned by me before the 12th day of August, 1855," and the latter granting at a yearly rent the other half of the same property, "also all the machinery situate and now being in said manufactory," held, that half of the machinery was conveyed absolutely and half leased. Ibid.

[NOTES.-See §§ 49-197.]

WILLISON v. WATKINS.

(3 Peters, 43-56. 1830.)

Opinion by MR. JUSTICE BALDWIN.

STATEMENT OF FACTS.-This was an action of trespass to try 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 state. 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, 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 sheriff's deed, and as standing in the relation of landlord to the defendant.

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 authorizing 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, Bordeaux 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 confiscation 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 five 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 been adverse to the title of the plaintiff during

the whole of that time, or such 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 becoming 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 favor or operate to bar his claim, by any lapse of time, however long. The defendant, on the other hand, contended that, from the time of the 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 could avail himself of the act of limitations if no suit was brought within five years thereafter.

§ 15. A tenant cannot dispute the title of his landlord by setting up title either in himself or a third party during the existence of the lease or tenancy.

It is an undoubted principle of law, fully recognized 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 relation between them, and operates in its full force to prevent the tenant from violating that contract by which he obtained and holds possession. 7 Wheat., 535. He cannot change the character of the tenure by his own act merely, so as to enable himself to hold against his landlord, who reposes under the security of the tenancy, believing the pos session of the tenant to be his own, held under his title and ready to be surrendered by its termination by the lapse of time or demand of possession. The same principle applies to mortgagor and mortgagee, trustee and cestui que trust, and generally to all cases where one man obtains possession of real estate belonging to another, by a recognition of his title. On all these subjects the law is too well settled to require illustration or reasoning or to admit of a doubt.

§ 16. but where the tenant disclaims holding under the landlord, and the knowledge of this comes to the landlord, and he rests for thirty years thereafter, the statute of limitations runs against him and the tenant will hold.

But we do not think that, in any of these relations, it has been adopted to the extent contended for in this case, which presents a disclaimer by a tenant with the knowledge of his landlord, and an unbroken possession afterwards for such a length of time that the act of limitations has run out four times before he has done any act to assert his right to the land. Few stronger cases than this can occur, and if the plaintiff can recover without any other evidence of title than a tenancy existing thirty years before suit brought, it must be conceded that no length of time, no disclaimer of tenancy by the tenant, and no implied acquiescence of the landlord, can protect a possession originally acquired under such a tenure. 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.

§ 17. When a tenant disclaims his landlord before his term of lease is out, this forfeits the lease; and he is not entitled to notice to quit. If the landlord has knowledge of the disclaimer, he is bound to treat the tenant as a wrong-doer. Here was no secret disclaimer, no undiscovered fraud; it was known to Bor

deaux, and was notice to him that Willison meant to hold from that time by his own 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., 272.

Had there been a formal lease for a 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. Having thus a right to consider the lessee as a wrongdoer holding adversely, we think that, under the circumstances of this case, the lessor was bound so to do. It would be 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 entitled to, such as results from his known adverse possession. No injury can be done the landlord unless by his own laches. If he sues within the period of the act of limitations, he must recover; if he suffers the time to pass 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 to 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 unexpired 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.

$18. at the end of the term the landlord may treat the tenant as a trespasser; but if he let him remain, he becomes a tenant at will, or from year to year, and is entitled to notice to quit.

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 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 of 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 the forfeiture. 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 adversary suit, and at