This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
6. Cook v. Whellock, 24 Q. B. Div. 658; Perkins v. Governor, Minor (Ala.) 352; Nolen v. Roy-ston, 36 Ark. 561; Lataillarde v. Santa Barbara Gas Co., 58 Cal. 4; Lyon v. Washburn, 3 Colo. 201; Palmer v. Melson, 76 Ga. 803; Mackin v. Haven, 187 111. 480, 58 N. E. 448; Longfellow v. Longfellow, 54 Me. 240; Stagg v. Eureka Tanning & Currying Co., 56 Mo. 317; Morrison v. Bassett, 26 Minn. 235, 2 N. W. 851; Allen v. Hall, 64 Neb. 256, 89 N. W. 803; Hatch v. Bullock, 57 N. H. 15; Prevot v. Lawrence, 51 N. Y. 219; Hamer v. McCall, 121 N. C. 196, 28 S. E. 297; Nearing v. Coop, 6 N. D. 345, 70 N. W. 1044; Howard v. Murphy, 23 Pa. 173; Williams v. Wait, 2 S. D. 210, 39 Am. St. Rep. 768, 49 N. W. 209; Lyles v. Murphy, 38 Tex. 75; Tryon v. Davis, 8 Wash. 106, 35 Pac. 598.
7. Long v. Douglass, 59 Tenn. (12 Heisk.) 147.
8. The statement made by Littleton and Coke that, unless the lease is made by indenture, the lessee can show, in an action of debt for rent, that the lessor, "had nothing in the tenements at the time of the lease," does not mean,
It was decided in England that in replevin for goods distrained, the plaintiff could not plead to the avowry that the avowant, the person distraining, had no estate in the land sufficient to support the demise.9 This decision, however, was based, not on any theory of estoppel, but on the statute of 11 Geo. 2, c. 19, Sec. 22, in regard to the form of an avowry. But in this country several decisions, in proceedings based on a distress, that the person in possession cannot question the landlord's title, are in terms based on the asserted existence of a general rule of estoppel against the tenant.10 Apart from cases governed by the English statute above referred to or by some state statute bearing on the subject, those in which the lessor can be regarded as having a fee simple by wrong, and perhaps those in which, the lease being by indenture, an estoppel "by deed" may be asserted, it is difficult to see why one who enters under a conveyance from another, even though it is in terms a lease, should be precluded from asserting that the grantor has no estate and that he has consequently no right of distress. It appears to be agreed that an asserted tenant may show that there is no right of distress in one claiming as landlord for the reason that the latter has no greater estate than that conveyed by him, that is, that there was an assignment and not a lease by him,11 and so it seems that the asserted tenant should be allowed, except in the cases above mentioned, to show that there is no right of disas is sometimes said, that in their time the lessee could show that the lessor's title was defective. It means merely that the lessee could show, as he ordinarily still can, that the lessor was not seised and consequently could not give possession to the lessee. See 1 Tiffany, Landlord & Ten. Sec. 78a.
9. Syllivan v. Stradling, 2 Wils. 208.
10. Alwood v. Mansfield, 33 111. 452; Giles v. Ebsworth, 10 Md. 333; Ward v. City of Philadelphia, 18 Wkly. Notes Cas. (Pa.) 561.
11. Pollock v. Stacy, 9 Q. B. 1033; Lewis v. Baker [19051, 1 Ch. 46; Prescott v. De Forest, 16 Johns. (N. Y.) 159; Ragsdale v. Estis, 8 Rich. Law (S. C.) 429.
[ Sec. 57 tress for the reason that the person claiming as landlord has no estate whatever. It was, however, decided in two modern English cases that if one in possession of land attorned to a person having no title to the land, the latter had a reversion "by estoppel" which would support a distress.12 Since an attornment is, in legal effect, no more than the acceptance of a lease,13 these cases would seem opposed to the suggestions above made.
The asserted general rule that the tenant is estopped or precluded to deny the landlord's title has been applied in some classes of actions other than those above mentioned. It has been applied in an action of trover against the tenant by the landlord for wood14 or manure15 wrongfully carried away from the premises by the tenant. In such case the tenant having obtained possession of the wood or manure, as of the land itself, by an implied admission that it belongs to the landlord, cannot convert it and then repudiate liability on the ground that the lessor has no title thereto. This involves an application of the doctrine of estoppel in pais, similar to that involved in connection with an action of ejectment. And the same doctrine is properly applicable in favor of a landlord seeking an injunction against waste.16 Having procured possession of the land by admitting it to belong to the lessor, the tenant cannot contend that the lessor is not the owner for the purpose of restraining its proper use by the tenant.
There are some classes of actions in which the asserted doctrine of the estoppel of a tenant to deny his landlord's title has been applied, where the propriety of its application would seem to bo open to question. It has, for instance, been decided that a tenant cannot question the landlord's title by a proceeding to set aside a conveyance without first relinquishing possession.17 So it has been decided that, without first relinquishing possession, the tenant cannot bring a proceeding for partition against the landlord,18 or a proceeding for the specific performance of a contract of sale made by the lessor before the lease,19 to redeem from a tax sale,20 or to enforce a trust.21 But in any of such classes of actions, apparently, the right of the landlord as regards the rent for the residue of the term could be secured by an appropriate provision in the decree, and, this being done, he could suffer no injury from the fact that the proceeding is instituted before instead of after the expiration of the tenancy.
12. Jolly v. Arbuthnot, 4 De Gex & J. 224; Morton v. Woods, L. R. 3 Q. B. 658, L. R. 4 Q. B. 293; These cases are discussed in 1 Tiffany, Landlord & Ten. Sec. 78k (3).
13. Ante Sec. 41.
14. Brooks v. Rogers, 101 Ala.