30. Ante Sec. 49(b).

31. See Wald's Pollock, Contracts (Williston's Ed.) 214, 215; 9 Cyclopedia, Law & Proc. 342.

32. Post Sec. 414 notes 26-29.

33. See, e. g., Davis v. Williams, 130 Ala. 530, 54 L. R. A. 749, 89 Am. St. Rep. 55, 30 So. 488; Bryan v. Winburn, 43 Ark. 28; Sexton v. Carley, 147 111. 269, 35 N.

Real Property.

[ Sec. 57 question the landlord's title in an action by him for possession,34 except when the tenant reacquires possession after having been evicted under paramount title.35 If however this statement is to be understood as meaning that, after the tenant has relinquished possession, he can assert defects in the lessor's title in defense to an action for rent, it must be regarded as erroneous. If he could do so, the rule excluding such a defense in an action for rent would be to a great extent nugatory. Nor can he, it would seem clear, defend an action by the landlord for waste, or in trover for wood cut,36 by showing defects in the lessor's title merely because, after he commited the waste, he relinquished the possession of the land.

An eviction of the tenant under paramount title may be asserted by him in defense to an action for rent accruing after the eviction37 although this involves a denial of the landlord's title; and likewise the tenant may assert, in defense to an action by the landlord to recover the possession, that he was, while holding under the lease, evicted under paramount title, and that he subsequently reentered not under the lease.38 It appears, therefore, ordinarily at least, that eviction under paramount title relieves the tenant from inability to deny the lessor's title.

E. 471; Norton v. Sanders, 31 Ky. (1 Dana) 14; Towne v. But-terfield, 97 Mass. 105; Ryerson v. Eldred, 18 Mich. 12; Jackson v. Harper, 5 Wend. (N. Y.) 246; Pate v. Turner, 94 N. Car. 47; Porter v. Mayfield, 21 Pa. 263; Milhouse v. Patrick, 6 Rich. L. (S. Car.) 350; Wilson v. Smith, 5 Yerg. (Tenn.) 379; Casey v. Hanrick, 69 Tex. 44, 6 S. W. 405; Greene v. Munson & Munson, 9 Vt. 37, 31 Am. Dec. 605; Doe d. Manton v. Austin, 9 Bing. 41.

34. Shelton v. Eslava, 6 Ala. 230, 31 Am. Dec. 677; McKissick v. Ashby, 98 Cal. 422, 33 Pac. 729; Grizzard v. Roberts, 110 Ga. 41, 35 S. E. 291; Brown v. Keller,

32 111. 151, 83 Am. Dec. 258; Pence v. Williams, 14 Ind. App. 86, 42 N. E. 494; Harrison v. Marshall, 4 Bibb. (Ky.) 524; Falk-ner v. Beers, 2 Doug. (Mich.) 117; Jackson v. Stiles, 1 Cow. (N. Y.) 575.

35. Post, this section, note 38.

36. See ante 57(b) notes 14, 16.

37. See post Sec. 413 notes 93-99:

38. Foster v. Morris, 3 A. K. Marsh, 10 Ky. 609; Bowman v. Goodrich, 94 Neb. 696, 144 N. W. 240; Gilliam v. Moore, 44 N. C. 95; See Farris & McCurdy v. Houston, 74 Ala. 162; Tewkesbury v. Magraff, 33 Cal. 237; Hopcraft v. Keys, 9 Bing. 613.

- (e) Showing expiration of title. There are occasional decisions39 and a number of dicta40 to the effect that the tenant, though precluded from asserting that the lessor had no title at the time of the lease, is not precluded from asserting that the lessor's title has expired, that, in other words, the estate which the lessor had at the time of the lease, being less than a fee simple, has come to an end. The cases do not indicate, with any approach to clearness, why this should be so. As regards the right of a tenant to make such a defense in an action of ejectment, it would seem that, by the acquisition of possession under the lease, the tenant might be regarded as admitting, not merely that the lessor has some interest in the land, but that he has such an interest as would entitle him to the return of the premises upon the expiration of the period named in the lease. As regards the right of a tenant to make such a defense in an action for rent, it is difficult to see why the tenant's obligation to pay rent, if not af39. That the expiration of the lessor's estate may be shown in ejectment, see Doe v. Ramsbotham, 3 Maule & S. 516; Doe d. Strode v. Leaton, 2 Cromp. M. & R. 728; Patterson v. Smith, 42 U. C. Q. B. 1; Heckart v. Mckee, 5 Watts (Pa.) 385; Welchi v. Johnson, 27 Okla. 518, 112 Pac. 989.

But see dicta in Gibbins v. Buck-land, 1 Hurl. & C. 736; Fortier v. Ballance, 10 111. 41; Henderson v. Henderson, 136 Iowa 564, 114 N. W. 178.

That it may be shown in an action for rent, see Lamson v. Clark-on, 113 Mass. 348, 18 Am. Rep. 498; Harrington v. Sheldon, 196

Mich. 388, 163 N. W. 64. But see to the contrary Balls v. Westwood, 2 Camp. 11; Ashton v. Golden Gate Lumber Co. (Cal.) 58 Pac. 1; Fordyce v. Young, 39 Ark. 135; Tilyou v. Reynolds, 108 N. Y. 558, 15 N. E. 534.

That it may be shown in an action arising out of a distress, see Claridge v. Mackenzie, 4 Man. & G. 143; Presstman v. Silljacks, 52 Md. 647.

The cases on the subject are discussed in 1 Tiffany, Landlord & Ten. Sec. 78 p (3).

40. England v. Slade, 4 Term. R. 682; Langford v. Selmes, 3 Kay & J. 220; Randolph v. CarlReal Property.

[ Sec. 58 fected by the lessor's lack of any estate, should be affected by his lack of an estate equal in duration to that which he sought to create. So long as the tenant has not been deprived of that as compensation for which he agreed to pay rent, the possession of the land, he should remain subject to that obligation, regardless of questions as to the lessor's title.