The rule, therefore, is a very general one with respect to an ejectment brought by the landlord against the tenant (unless, indeed, in the case where the assent of the latter is produced by the fraud or misrepresentation of the most frequent. "Touching *estoppels, which is an excellent and curious part of learning," says Lord Coke (e), "it is to be observed that there be three kinds of estoppels, viz., by matter of record, by matter in writing (i.e., by deed), and by matter in pais. By matter of record, viz., by letters patent, fine, recovery, pleading, taking of continuance, confession, imparlance, warrant of attorney, admittance "-some of which records are now obsolete. "By matter in writing, as by deed "-of which we have already treated. " By matter in pais, as by livery, by entry, by acceptance of rent, by partition, by acceptance of an estate, whereof Littleton maketh a special observation, that a man shall be estopped by matter in the country without any writing." Of estoppel, by matter of record, it is not requisite to say more; but one or two examples of estoppel in pais will be useful, both as showing that the force of an estoppel is not peculiar to a deed, and as illustrating still further the grounds and reasons of estoppel by deed itself. In Pickard v. Sears (/) it was laid down by the Court of Queen's Bench that the rule of law is clear, " that, where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position; the former is concluded from averring; against the latter a different state of *things as existing at the same time." "By the term 'wilfully,' however, in that rule," to quote the words of Parke, B., in Freeman v. Cooke (g), "we must understand, if not that the party represents that to be true, which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon accordingly; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth; and conduct by negligence or omission, where there is a duty upon a person by usage of trade or otherwise to disclose the truth, may often have the same effect. As, for instance, a retiring partner omitting to inform his customers of the fact in the usual mode that the continuing partners are no longer authorised to act as his agents, is bound by all contracts made by them with third persons, on the faith of their being so authorised......
Before quitting this head of Estoppel, it must he observed that as the deed takes effect from the delivery, former: Miller v. M'Brier, 14 S. & R. 382; Hockenbury v. Snyder, 2 W. & S. 240), and also with respect to actions brought by the landlord to recover the rent, for the "mischief to which the absence of such a rule as between landlord and tenant must lead, would evidently be that a tenant, having obtained the possession from his landlord, could betray it to another, and thus drive the former to an ejectment to regain the possession. The result would be that no landlord would ever be safe from the prospect of litigation. Hence the tenant's obligation to restore to him the possession:" Rawle on Covenants for Title, 235. It may also be observed that where the lease is by indenture, the law of "estoppel by deed " applies: Jordan v. Twells, Rep. Temp. Hardw. 171; Palmer v. Elkins, 2 Raym. 1550. And where the action is assumpsit for use and occupation, the issue sought to be raised by the question of title is an immaterial one: Lewis v. Willis, 1 Wils. 314; Doe v. Smythe, 4 M. &. S. 347; Cobb v. Arnold, 8 Mete. 398.
The rule only operates, however, to debar the tenant from denying the title at the time of possession given, and he is at liberty to show that it has since expired or been defeated : Walton v. Waterhouse, 2 Wms. Saund. 418, note; Hop-croft v. Keys, 2 M. & Sc. 767; Jackson v. Rowland, 6 Wend. 666; Devacht v. Newsam, 3 Ohio, 57; Randolph v. Carlton, 8 Ala. 606; or such circumstances as amount to a constructive eviction, as by being compelled to make payments to a mortgagee, ground landlord, etc.: Doe v. Barton, 11 A. & E. (39 E. C. L. R.) 314; Mayor of Poole v. Whitt, 15 M. & W. 577; Waddilove v. Bar-nett, 2 Birg. N. C. (29 E. C. L. R.) 538; Franklin v. Carter, 1 C. B. (50 E. C. L. R.)'760; Jones v. Clark, 20 Johns. 51; Magill v. Hillsdale, 6 Conn. 469; Smith v. Shepard, 15 Pick. 147; Welch v. Adams, 1 Metc. 494; George v. Putney, 4 Cush. 355; Greeno v. Munson, 9 Vt. 37; Chambers v. Pleak, 6 Dana, 428.-R.
One entering as a sub-tenant is in like manner estopped from denying the title of the paramount landlord: Milhouse v. Patrick, 6 Rich. 350; [Jones v. Dove, 7 Or. 467; and the heirs of a tenant while standing solely on his right: Lewis v. Adams, 61 Ga. 559.] When one, however, already in possession, acknowledges himself to be the tenant of another, he may destroy the effect of such acknowledgment by showing that it was procured by fraud, or proceeded from a clear mistake as to title: Givens v. Mullinax, 4 Rich. 590. The gratuitous payment of rent by one in possession of real estate does not estop him from showing the true character in which he holds the premises: Shelton v. Carrol, 16 Ala. 148. And see upon the general principle of a tenant's being estopped from controverting his lessor's title: Cody v. Quarterman, 12 Ga. 386; Freeman v. Heath, 13 Ired. 498; Sims v. Glazener, 14 Ala. 695; Pope v. Harkins, 16 lb. 321; Hoen v. Simmons, 1 Cal. 119; Henly v. The Branch Bank, 16 Ala. 552. A tenant, after the tenancy has terminated, and he has restored the possession to his landlord, may assert a title paramount against him, and the previous tenancy cannot bar his right to recover: Smith v. Mundy, 18 lb. 182; Page v. Kinsman, 43 N. H. 328; Wilson v. James, 79 N. C. 349; Rogers v. Boynton, 57 Ala. 501. He may show also that the landnot from the apparent date, neither party can be estopped from showing the real date of the delivery, although by doing so a very different meaning may be given to the deed from that which would be given to it if the parties were estopped from denying that the date was the time from which the deed commenced in effect. Thus, where a charter-party, dated 6th February, contained a covenant that a ship should proceed from Demerara, where she then lay, on or before 12th February, the defendant was allowed to show that the charter-party was, in fact, not executed till 15th March, and that therefore the condition as to the time of sailing was dispensed with (c).