Dixon v. . Stewart

Burwjell, J,: On the trial some exceptions were taken, as appears from the record, to the introduction of certain deeds by means of which the plaintiffs sought to show that the title to the land in controversy, which was conceded to be out of the State, had become vested in him. His Honor admitted these deeds in evidence over the objection of the defendants, but, upon consideration of them and of the plaintiffs’ evidence *414 as to possession under them, he decided that the plaintiffs had failed to show by a complete chain of title, or by possession under the deeds introduced, a title in himself to the land “good against the world,” and he so charged the jury, and told them, in effect, that plaintiff, having failed to establish a title in that way, could not recover unless he had established facts which constituted an estoppel on the defendants and prevented them from disputing his title, and had thus proved in himself a title good enough for his purposes in this action. This ruling renders it unnecessary to consider the exceptions mentioned above, for the evidence, though admitted, was afterwards declared to be of no effect. The jury found that the plaintiffs did have a title good against the defendants by estoppel, and there being no exception to the admission of any of the testimony bearing upon this branch of the case, we have only to ascertain if the charge to the jury upon this subject was correct. It is familiar learning that a tenant will not be allowed to deny that his landlord has title to the leased premises in an action by the latter against the former for possession or for rents, and this general rule has application, we think, both to those instances where the landlord himself having possession, delivered up that possession to the tenant, and also to those instances where one who is himself in the actual possession of land agrees to assume the relation of a tenant as to the land towards another who asserts some title to it, there being no proof that this agreement was induced by fraud or mistake. Mr. Bigelow, in his work on Estoppel, page 527, says: “ There has been some conflict upon the question whether the bare taking a lease of land of which the tenant was already in possession may estop him to deny his lessor’s title. It is agreed in all the cases, as we have seen, that if the tenant was induced to take the lease by mistake, fraud or misrepre-tation on the part of the lessor, he may dispute his title. *415 * * * The conflict arises in cases in which there is a simple question growing solely out of prior possession and' later acceptance of a lease by the same person. In New York and Kentucky it is held that the estoppel prevails, while in California the contrary doctrine has been held in two recent cases upon great consideration. But even in that State it is held that the estoppel arises if the tenant does not prove a paramount title either in himself or in some one under whom he claims.” And on page 534 the author continues: “The only room for the question raised in California is either in the case of an original lease, or when the attornment is made to a stranger to the title of the lessor. In such a case, is bare possession in the tenant, without mistake, fraud or the like in the leasing or attornment, sufficient to remove the estop-pel? The landlord may still have changed his position, reasonably induced by the lessor’s acceptance of a tenancy. There would then be the elements of an estoppel in pais; and without stopping longer than to refer to the fact that the doctrine that the act of the party against whom the estoppel is claimed must have been ivilful in a literal sense, if it ever prevailed, has been overruled, it is enough to say that the case might present features quite as conclusive as those in the case of an estoppel of a tenant who has received possession from his landlord; for taking possession from a landlord is only one way in which a change of position may take place. It is immaterial what may be the nature or extent of the change, provided there has been a substantial change in fact, só that the landlord would be placed in a less advantageous position by allowing the denial of his title than he would have occupied had not the tenancy been created.” If we were to adopt the rule laid down in the case cited by defendants’ counsel (Franklin v. Merida, 35 Cal., 558), which is set out in the foregoing quotation from Mr. Bigelow, as modified by the latter case referred to by him (Holloway v. Galliac, 47 Cal., 474), which rule is thus stated in the latter *416 case: “A tenant is estopped by a lease which he takes when in possession, unless he proves paramount title in himself or another under whom he claims” — the plaintiffs would not be helped, for they base their claim of title solely upon “ adverse possession for forty-three years of the land in controversy,” and also on “an adverse possession under color of title from February 20, 1873, to the commencement of this action.” Under the charge of his Honor the verdict of the jury has a double effect. It establishes the fact that defendants held the land from 1873, the date of the alleged lease, as tenants of plaintiffs’ vendor, and thus destroys defendants’ claim of title by possession by establishing the fact that from 1873 the possession was not adverse. Hence, they proved no paramount title, and the estoppel would be left to work its effect. But we think reason and the authorities sustain the rule which is approved by the eminent author quoted heretofore, and that the defendants were estopped in this action to deny the plaintiffs’ title, if in 1873 the defendant Stewart was in the actual possession of the land, and agreed to become the tenant of plaintiffs’ vendor. The defendant McNeill testified that he “ never had any possession, except through Stewart.” The jury find that Stewart was holding as tenant of plaintiffs’ vendor. The salutary doctrine of estoppel requires that that possession shall be surrendered to the landlord before the tenant can set up a title adverse to him. The rule goes no further. After the tenant has surrendered possession he may turn upon his former landlord and assert a better title than his, if he has one. Hence, it may be important in cases where the recovery is had under this rule of practice, that the record should show the ground of the recovery, so that the judgment will not work another and more effective estoppel on the defendant. We have not deemed it necessary to advert to the fact that his Honor, in one part of his charge, said that the defendants *417 would be estopped if they entered into the possession of the land as tenants of the plaintiffs’ vendor. The defendants contend that there is no evidence of such entry into possession, but that all the testimony shows that if the alleged lease was made and accepted by the defendant Stewart, it was made and accepted while he was in possession. We need not give this matter consideration, because we have decided that the estoppel works, even though the lessee was in possession at the time the lease was made and accepted. We find no error, and the judgment is Affirmed. Note. — Bur well, J.: The case on appeal states the date of the deed from J. J. Lane to plaintiff, under which he claims the land in controversy, as the 24th day of February, 1891, which is later than the date of the summons. No objection to this deed was taken on the trial on this account. We have caused a copy of this exhibit to be added to the record, and from it we learn that the date of the said deed is February 24, 1890, and thus it appears that, by a clerical error, 1891 was put for 1890.