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 .
1ll, 13 So. 386. So in the case of an action for removal of a house. Renalds v. Offit, 15 U. C. Q. B. 221.
15. Plumer v. Plumer, 30 N. H. 558.
16. Parker v. Raymond, 14 Mo. 535.
In a suit by the tenant against the landlord for breach of a covenant for title, the former can, it is evident, deny the lessor's title, the suit being indeed based on such denial. A suit by him to rescind the lease for misrepresentations as to title can likewise, it is evident, succeed only upon proof of lack of title.
- (c) As resulting from attornment. If one already in possession of land attorns as tenant to another, that is, in effect accepts a lease from such other,22 he is, it has been quite frequently decided, estopped to deny the title of the one to whom he attorned, in defense to an action by the latter against him for the possession of the land.23 In spite, however, of the weight of authority in favor of such a view, it is by no means satisfactory.24 The element of actual estoppel, so clearly apparent when possession is given under the lease.25 is entirely absent when possession is not given, that is, in the latter case, the lessor is not induced to take any action to his possible disadvantage by reason of any implied representation by the lessee that he will relinquish the possession on the expiration of the tenancy. Since one in possession of land would rarely attorn to another having no title unless under the mistaken impression that the latter has title, the not infrequent decisions26 and dicta,27 that the rule of estoppel
17. Fleming v. Mills, 182 111. 464, 55 N. E. 373; Van Cleave v. Wilson, 73 Ala. 387; Finlayson v. Cayuga Coal & Coke Co., 173 Ky. 763, 191 S. W. 486; Harvin v. Blackman, 112 La. 24, 36 So. 213.
Contra, Shaw v. Lacy, - Ala. -, 74 So. 933.
18. Barlow v. Dahm, 97 Ala. 414, 38 Am. St. Rep. 192, 12 So. 293; Dixon v. Patterson, 135 C,a. 183, 69 S. E. 21; Fleming v. Mills,
182 111. 464, 55 N. E. 373; Hen-ning v. Warner, 109 N. C. 406, 14 S. E. 317 (semble).
19. Davis v. Williams, 130 Ala. 530, 54 L. R. A. 749, 89 Am. St. Rep. 55, 30 So. 488. And see McWhorter v. Stein (Ala.) 39 So. 617.
20. Stout v. Merrill, 35 Iowa, 47.
21. Courvoirsier v. Bouvier, 2 Neb. 55.
22. Ante Sec. 41.
23. Vancleave v. Wilson, 73 Ala. 387; Hughes v. Watt, 28 Ark. 153; Bullard v. Hudson, 125 Ga. 393, 54 S. E. 132; Saunders v. Moore, 77 Ky. (14 Bush.) 87; Campau v. Lafferty, 43 Mich. 429,
5 N. W. 648; Carter v. Marshall, 72 111. 609; Forgy v. Harvey, 151 Ind. 507, 51 N. E. 1066; Loring v. Harmon, 84 Mo. 123; Bartlett v. Robinson, 52 Neb. 712, 72 N. W. 1053; Jones v. Reilly, 174 N. Y. 97, 66 N. E. 649; Abbott v. Cro-martie, 72 N. C. 292, 21 Am. Rep. 457; Miller v. McBrier, 14 Serg.
& R. (Pa.) 382; Williams v. Wait, 2 S. D. 210, 49 N. W. 209, 39 Am. St. Rep. 768; Tyler v. Davis, 61 Tex. 674; Jordan v. Katz, 89 Va. 628, 16 S. E. 866; Voss v. King, 33 W. Va. 236, 10 S. E. 402; Lucas v. Brooks, 85 U. S. (18 Wall:) 436; Doe d. Pritchitt v. Mitchell, 1 Brod. & B. 11; Doe d. Marlow v. Wiggins, 4 Q. B. 367.
24. There are California decisions contra Tewksbury v. Ma-graff, 33 Cal. 237; Franklin v.
Merida, 35 Cal. 558, 95 Am. Dec. 129, and in other states the majority view is not fully accepted. See cases cited 1 Tiffany, Landlord & Ten. Sec. 78k(2), and St. Louis & S. F. R. Co. v. Budd, -Ark. -, 165 S. W. 265.
25. Ante Sec. 57 (b).
26. Pearce v. Nix, 34 Ala. 183; Pacific Mut. Life Ins. Co. v. Stroup, 63 Cal. 150; Anderson v. Smith, 63 111. 126; Shearer v. Winston, 33 Miss. (4 George) 149; Michigan Cent. R. Co. v. Bullard, 120 Mich. 416, 79 N. W. 635; Child v. Chappell, 9 N. Y. (5 Seld.) 246 (semble); Givens v. Mullinax, 4 Rich. Law (S. C.) 590, 55 Am. Dec. 706; Berridge v. Glassey (Pa.) 7 Atl. 749 (semble); De Wolf v. Martin, 12 R. I. 533; Ham-mons v. McClure, 85 Tenn. 65, 2 S.' W. 37; Swift v. Dean, 11 Vt. 323, 34 Am. Dec. 693; Queen v. Hall, 6 Can. Exch. 145.
27. See Farris v. Houston, 74 Ala. 162; Lyon v. Washburn, 3 Colo. 201; Tison v. Yawn, 15 Ga.
Does not apply as against one who attorns under mistake are somewhat difficult to harmonize with the decisions above cited in favor of the operation of the estoppel in the ordinary case of one who attorns.
One who, by attorning to another as tenant, or accepting a lease, of land of which he is already in possession, has assumed a liability for rent, should not, it seems, be able to defend against such liability by reason of lack of title in such other.28 There are however occasional statements to be found that by reason of the lack of title there is in such case no consideration to support the promise to pay rent.29 But in most jurisdictions, the liability on the covenant for quiet enjoyment arising from the creation of the relation of landlord and tenant30 would seem to furnish a consideration, even if this was not furnished by the making of a written lease or the forbearance to disturb the promisor's possession.31 Moreover, one who accepts a lease reserving rent becomes liable for the rent, by reason of privity of estate, without the necessity of any contract on his part.32
- (d) Duration of the estoppel. It is frequently said that the estoppel or preclusion of the tenant to deny the landlord's title continues until he relinquishes possession.33 This is obviously so as regards the right to
491, 60 Am. Dec. 708; Carter v. Marshall, 72 111. 609; Isaac v. Clarke, 2 Gill (Md.) 1; Loring v. Harmon, 84 Mo. 123; Jackson v. Spear, 7 Wend. (N. Y.) 401; In-graham v. Baldwin, 9 N. Y. (5 Seld.) 45; Dixon v. Stewart, 113 N. C. 410, 18 S. E. 325.
28. See Lyon v. Washburn, 3 Colo. 201; Prevot v. Lawrence, 51 N. Y. 219; Derrick v. Luddy, 64 Vt. 462, 24 Atl. 1050; Campbell v. Short, - Okla. -, 166 Pac. 438; Allen v. Migliavacca Realty Co., 74 Wash. 347, 133 Pac. 580.
R. P. - 13
29. Crun v. Nelms, 78 Ala. 604; Fuller v. Sweet, 30 Mich. 237, 18 Am. Rep. 122; Clary v. O'Shea, 72 Minn. 105, 71 Am. St. Rep. 465, 75 N. W. 115.