Tillotson v. Doe ex dem. Kennedy

COLLIER, C. J. The first question which invites our con* sideration, is, whether the possession of a tenant becomes adverse to his landlord by disclaiming to hold under him, and denying that he has a title to the premises, and if it does, will the statute of limitations begin to run against the landlord, from the time he has notice of the disclaimer? It has been so often held, as to be now regarded as settled law, that if the tenant set his landlord at defiance and disavow his right to demand rent of him, or his title to the property, he places himself in a position antagonistic to his landlord, who may bring an ejectment against him without first giving a notice to quit. [Adams on Ejectment, 118; Jackson v. Wheeler, 6 Johns. Rep. 272; Jackson v. Thomas, 16, Johns. Rep. 293; 2 Bla. Com. 276; 5 Dane’s Ab. 718; Bull. N. R 96. So it has been frequently stated as a principle, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or another, during the existence of the tenancy. The doctrine of estoppel applies to the relation between landlord and tenant, and as by the acceptance of the lease the latter impliedly admits, that the former has a disposable interest in the premises, which is to continue until the expiration of the tenancy at least, he shall not be allowed to set up an adverse title in a third person, so as to prevent the landlord from recovering either rent, or possession. [Blight’s lessee v. Rochester, 7 Wheat. Rep. 535.] “He cannot change the character of the tenure by his own act merely, so as to enable himself to hold against his landlord, who reposes ■under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered by its termination, by the lapse of time, or demand of possession.” [Willison v. Watkins, 3 Peters’ Rep. 48.] But the principle of estoppel say the court, in the case last cited, has nev [411] er been so far extended as to maintain that a disclaimer by á tenant with the knowledge of his landlord, and an unbroken possession afterwards for such a length of time, that the act of limitations has run out, does not operate to bar an ejectment at the suit of the landlord. “No injury can be done the landlord, unless by his own laches. If he sues within the periodof the act of limitations he must recover; if he suffers the time to pass without suit, it is but the common case of anyotherpartywho loses his right by negligence andloss of time. As to the assertion of his claim, the possession is as adverse and as open to his action, as one acquired originally by wrong, and we cannot assent to the proposition that the possession shall assume such character as one party alone may choose to give it. The act is conclusive on the tenant. He cannot make his disclaimer, and adverse claim, so as to pi’Otect himself during the unexpired term of the lease; he is a trespasser on him who has the legal title. The relation of landlord and tenant is dissolved, and each party is to stand upon his right.” Again, say the court, “if a different rule was established, the consequences would be very serious. A mortgagee, a direct purchaser, from a tenant, or one who buys his right at a sheriff’s sale, assumes his relations to the landlord with all their legal consequences, and they are as much estopped ■from denying the tenancy. If no length of time would protect a possession originally acquired under a lease, it would be productive of evils truly alarming, and we must be convinced beyond a doubt that the law is so settled, before we could give our sanction to such a doctrine.” The court then entered upon an examination of the authorities, and attained the conclusion that these are in harmony with' the views they had expressed. Hovenden v. Annesley, [2 Sch. & L. Rep. 607,] is also a leading case on this point. Lord Chancellor Redes.dale there says, “that attornment will not affect the title of his lessor,.so long as he has a right to consider the person holding the possession as his .tenant. But as he has a right to punish the act of the tenant in disavowing the tenure, by proceeding to eject him, notwithstanding his lease; if he will not proceed for the forfeiture, he has no right to affect the rights of third persons, on the ground that the ' possession was betrayed; and there must be a limitation to that as to every other demand. The intention of the statute of limitations being to quiet the title of lands, it would be curious if a tenant for ninety-nine years, attorning to a person insisting he [412] was entitled, and disavowing tenure to the knowledge of his former landlord, should protect the title of his original lessor, for the term of ninety-nine years. That would, I think, be too strong to hold on the ground of the possession being in the lessee, after the tenure has been, disavowed, to the knowledge of the lessor;” p. 624. [See also Ogden v. Walker’s heirs, 6 Dana’s Rep. 425; Hendrick v. Robinson’s adm’r, etal. 7 Id. 165; Jackson v. Johnson, 5 Cow. Rep. 74; Lane v. Osment, 9 Verger’s Rep. 86; Ross v. Blair, 1 Meigs’ Rep. 525; Peyton, et al. v. Stith, 5 Peters’ Rep, 491; McMaster’s v. Bell, 2 Penn. Rep. 180; Clapp v. Bromagham, 9 Cow. Rep. 573.] This view harmonizes with the analogies of the law, which permit persons holding property under a claim of title to insist upon the statute of limitations, as a bar to a recovery, or as giving a title, where it has commenced and run, after the possession has become adverse. Thus, if a trustee denies the right of his cestui que trust, and the possession of the property becomes adverse, lapse of time from that period may constitute a bar even in equity. [Kane v. Blaodgood, 7 Ch. Rep. 90.] So it has been held, that possession by the mortgagee for the length of time after forfeiture of the mortgage, that bars an action at law, is available against the mortgagor both at law and in equity, unless interest has been paid in the meantime, or there appear some other circumstance excusing the neglect. [Hum-phries v. Terrell, 1 Ala. Rep. 650, and cases there cited; Hughes v. Edwards, 9 Wheat. Rep. 490; Elmendorf v. Taylor, 10 Wheat. Rep. 152.] We might add to these, other analogous cases if it were necessary, but the cases which have been cited directly to the point, are so well sustained by argument, so numerous, and consonant to reason, that we do not feel at liberty, even if inclined to disregard them. The rule they establish cannot work a serious injury to the landlord, as the recognition of an opposite principle, would be likely to superinduce, in respect to third persons. Nor can it, in any manner change the nature of the contract, and permit the tenant to dispute the title of his landlord, during the period of the tenancy, before the statute has completed a bar. It has been heretofore decided by this court, that the confirmation by the United of a concession of lands under the Spanish authorities, will not so operate, as to prevent a person from availing himself of the statute of limitations, by proof of possession, du [413] ring the time the government of Spain exercised dominion over the country in which the land was situated; and this, although the statute did not complete the bar until after the concession was confirmed. [Innerarity v. The heirs of Mims, 1 Ala. Rep. 660; The heirs of Mims v. Huggins, Id. 676.] From this view of the law, it is obvious that the circuit court erred, in supposing that the statute of limitations did not begin to run from the time of Plumley’s disclaimer of Pollard’s title, and a knowledge thereof by the latter, and not until the expiration of his lease. Our conclusion upon this point renders it unnecessary for us to consider the second question. We will, however-, remark, that although the patent certificate might be sufficient evidence of a legal title in the lessor of the plaintiff, yet it is worthy of examination, whether the issuance of the patent to Baudin by his direction, did not invest the patentee with the legal title. The solution of this question would involve the consideration of several important points, which we are not now inclined to enter upon. If the lessor of the plaintiff was a purchaser of Baudin, under a deed, with a general warranty, then the legal title, if it vested in him by the patent, would inure to the former; but it would seem upon authority, that no such consequence follows, where the grantor has executed a quit-claim deed, or one which warrants the title against himself and his assignees only. [Comstock, et al. v. Smith, 13 Pick. Rep. 116; Allen v. Sayward, 5 Greenl. Rep. 227; Kennedy & Moreland v. Heirs of McCartney, 4 Porter’s Rep. 158.] This view of the case is so decisive pf it, that we will not notice any other question sought to be raised, but merely declare as a consequence of our opinion, that the judgment is reversed and the cause remanded. CLAY, J. not sitting.