Shelton v. Doe ex dem. Eslava

ORMOND, J. The charge moved for, assumes, that if the tenant does not disclaim the title of the landlord, during the tenantcy, he is not precluded from setting up an outstanding title after its expiration. The rule, that the tenant cannot dispute the title of his landlord, continues as well after the tenantcy is at an end, as during its continuance. He cannot change the character of the ten-antcy, by his own acts, so as to enable him to hold against his landlord, who reposes under the security of the tenantcy, unless after disclaimer of the title of the landlord, he, with knowledge thereof, permits the tenant to remain in possession such a length of time that the statute of limitations bars an entry. [Tillotson v. Kennedy, 5 Ala. and cases cited on the brief of defendant in error.] There is no foundation whatever for the supposition, that if the tenant does not dispute the landlord’s title during the continuance of the lease, he may set up an outstanding title in a stranger, after its termination. If such were the law, a demise would be a most hazardous thing, as it would be in the power of the tenant, at the termination of the lease, by setting up an outstanding paramount title in a stranger, to deprive the landlord of the benefit of his possession. Whatever, however, might be the injurious consequences to the landlord, from the admission of such a principle, it is perfectly clear no such rule of law exists. We do not consider it necessary to enter upon the enquiry, whether the construction, put by the court, on the covenant, that the landlord was to pay for the erection of the house, which the tenant was at liberty to build, was correct or not, as it does [234] not appear' from the record that the house was built. The charge, therefore, so far as we can judge from the record, was purely abstract; and whether right or wrong, could not prejudice the plaintiff in error. Let the judgment be affirmed.