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 .
It has been asserted, in an enormous number of cases, that a tenant is estopped to deny his landlord's title. Conceding that otherwise the rule of estoppel thus stated in correct, it would be more accurately expressed by saying that a tenant is estopped as against the landlord to deny the lessor's title. That is, the question in any particular case is as to the right of the tenant to question the title of the lessor at the time of the lease, and the question of his right to deny the landlord's title is involved only because it is the lessor's title. Consequently the tenant is not precluded from showing that the person asserting a claim against him has transferred the reversion to a third person1 or to himself.2 And he may, it is obvious, show that such person never had the reversion.3
94. Sampson v. Easterby, 9 Barn. & C. 505; Roe d. Baneford v. Hayley, 12 East, 464.
95. King v. Jones, 5 Taunt. 418; See Prout v. Roby, 15 Wall. (U. S.) 471; 21 L. Ed. 58; Hendrix v. Dickson, 69 Mo. App. 197.
96. Derisley v. Custance, 4 Term R. 75; Morse v. Aldrich, 36 Mass. (19 Pick.) 449, 31 Am. Dec. 150; Chamberlain v. Dunlop, 126 N. Y. 45, 22 Am. St. Rep. 807, 26
N. E. 966. (semble).
97. Wollaston v. Hakewill, 3 Man. & G. 297; Howard v. Heiner-schit, 16 Hun (N. Y.) 177.
98. Tilney v. Norris, 1 Ld. Raym. 553; In re Galloway, 21 Wend. (N. Y.) 32, 34 Am. Dec. 209; Becker v. Walworth, 45 Ohio. St. 169, 12 N. E. 1.
99. Taylor v. Shum, 1 Bos. & P. 21.
- (b) In particular actions. In spite of the frequent reiteration of the statement that a tenant is estopped to deny the landlord's title, there is some room for question whether there is properly any universal rule to that effect. While in most actions a tenant is precluded from denying the validity of the lessor's title at the time of making the lease, such preclusion appears to have arisen from different considerations in different classes of proceedings. And some classes of proceedings can be named in which the tenant is not properly so precluded. The various classes of proceedings will be considered separately in this connection.
In an action of ejectment by the landlord against his tenant, either at the expiration of his tenancy or in the enforcement of a condition of re-entry, the tenant cannot, it has been frequently decided, set up defects in the landlord's title, as a defense, the courts ordinarily referring to this as one application of a general rule of estoppel upon the tenant.4 And the tenant is likewise precluded, in a summary proceeding by the landlord, from asserting an outstanding paramount title.5 The inability of the tenant in this regard, as against the landlord's claim of possession, is not inaptly referred to as a case of estoppel. One who acquires possession from another for a limited time only, or with a right of re-entry in such other, may properly be regarded as admitting the latter's right to possession at the end of such time or on breach of the specified condition, and as in effect acquiring possession by force of such tacit admission. Were the rule otherwise, one could never lease land to another except at the risk of losing his reversionary estate by reason of the lessee's discovery of a superior title in a third person.
1. Doe d. Marriott v. Edwards, 5 Barn. & Adol. 1065; Winn v. Strickland, 34 Fla. 610, 16 So. 606; St. John v. Quitzow, 72 111. 334; Gregory's Heirs v. Crab's Heir's 2 B. Mon. (Ky.) 234; McGuffie v. Carter, 42 Mich. 497, 4 N. W. 211; Pentz v. Kuester, 41 Mo. 447; Allen v. Hall, 66 Neb. 84, 92 N. W. 171; Hoag v. Hoag, 35 N. Y. 469; West Shore Mills Co. v. Edwards 24 Ore. 475, 33 Pac. 987; Sparks v. Walton, 4 Phila. (Pa.) 72; Chase v. Dearborn, 21 Wis. 57.
So the tenant may show that the reversion has passed by judicial process or decree from the person claiming as landlord. Randolph v. Carlton, 8 Ala. 606; Cor-rigan v. City of Chicago, 144 111. 537, 21 L. R. A. 212, 33 N. E. 746; Casey v. Gregory, 13 B. Mon. (Ky.) 505, 56 Am. Dec. 581; Keys v. Forrest, 90 Md. 132, 45 Atl. 22;
Sherman v. Spalding, 126 Mich. 561, 85 N. W. 1129; Gunn v. Sinclair, 52 Mo. 327; Rhyne v. Guevara, 67 Miss. 139, 6 So. 736; Lancashire v. Mason, 75 N. C. 455.
2. Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545; Tewkesbury v. Magraff, 33 Cal. 237; Hardin v. Forsythe, 99 111. 312; Smith v. Scanlan, 106 Ky. 572, 51 S. W. 132; Silvey v. Summer, 61 Mo. 253; Shields v. Lozear, 34 N. J. L. 496; Elliott v. Smith, 23 Pa. 131; Wade v. South Penn Oil Co. 45 W. Va. 380, 32 S. E. 169.
3. Doe d. Plevin v. Brown, 7 Adol. & E. 447; Tewkesbury v. Magraff, 33 Cal. 237; Pickett v. Breckenridge, 22 Pick. (Mass.) 297, 33 Am. Dec. 745; Hilbourn v. Fogg, 99 Mass. 11; Funk's Lessee v. Kincaid, 5 Md. 404; Walker v. Fisher, 117 Mich. 72, 75 N. W. 144; Gillett v. Mathews, 45 Mo. 307; Despard v. Walbridge, 15 N. Y.
374; Bergman v. Roberts, 61 Pa. 497.
4. Doe d. Knight v. Smythe, 4 Maule & S. 347; Peyton v. Stith, 30 U. S. (5 Pet.) 485; Shelton v. Eslava, 6 Ala. 230, 31 Am. Dec. 677; Burgess v. Rice, 74 Cal. 590, 16 Pac. 496; Thomas v. Young, 79 Conn. 493, 65 Atl. 955; Milhollin v. Jones, 7 Ind. 715; Longfellow v. Longfellow, 61 Me. 590; Griffin v. Slioffield, 38 Miss. 359. 77 Am. Dec. 646; Hamill v. Jalonick, 3 Okla. 223, 41 Pac. 139; Cooper v. Smith. 8 Watts (Pa.) 536; Wood v. Turner, 27 Tenn. (8 Humph.) 685; Casey v. Hanrick, 69 Tex. 44. 6 S. W. 405; Barton v. Learned. 26 Vt. 192.
The rule of estoppel has also been applied in trespass to try title. Thomson v. Peake, 7 Rich.
Law (S. C.) 353; Tyler v. Davis, 61 Tex. 674.
5. Anderson v. Anderson, 104 Ala. 428, 16 So. 14; Washington v. Moore, 84 Ark. 220, 120 Am. St. Rep. 29, 105 S. W. 253; Peterson v. Kinkead, 92 Cal. 372, 28 Pac. 568; Houck v. Williams, 34 Colo. 138, 81 Pac. 800; McLean v. Spratt, 20 Fla. 515; Grizzard v. Roberts, 110 Ga. 41, 35 S. E. 291; Knefel v. Daly, 91 111. App. 321; Chambers v. Irish, 132 Iowa, 319, 109 N. W. 787; Fry v. Boman, 67 Kan. 531. 73 Pac. 61; Granger v. Parker, 137 Mass. 228; Newman v. Mackin, 21 Miss. (13 Smedes & M.) 383; People v. Kelsey. 14 Abb. Pr. (N. Y.) 372, 38 Barb. 269; Hoffman v. Clark, 63 Mich. 175, 29 N. W. 695; Pentz v. Kuester, 41 Mo. 447; Gies v. Storz BrewIn an action to recover rent, the defense that there is an outstanding title superior to that of the lessor has been frequently decided to be inadmissible, the courts ordinarily stating this as merely one application of the asserted rule that the tenant is estopped to deny his landlord's title.6 But while, as observed. above, the preclusion of the tenant to deny his landlord's title in an action of ejectment is properly termed "estoppel," it is difficult to see the applicability of such a term in connection with an action for rent. The reason that the lessee, or the latter's assignee, cannot attack the landlord's title in an action for rent is, it is submitted, merely that the law does not recognize a lack of title in the lessor, not resulting in any interference with possession under the lease, as a ground for the repudiation of the tenant's obligation. As stated in a Tennessee case,7 the question of title "is not relevant." If this exclusion of an inadmissible defense to an action for rent is to be expressed in terms of estoppel, so might, it seems, any inadmissible defense to an action to enforce any obligation.8 ing Co., 75 Neb. 698, 106 N. W. 775; Heyer v. Beatty, 76 N. C. 28; Emerick v. Travener, 9 Gratt. (Va.) 220, 53 Am. Dec. 217; First English Evangelical Lutheran Church of Wheeling v. Arkle, 49 W. Va. 92, 38 S. E. 486.