Trustees of Green ex rel. Worthington Township v. Robinson

BY THE COURT. It is material that the lessors have title or authority to lease, when they execute the lease. The lease can only take effect from the time of its execution and delivery; the date is only prima facie evidence of the execution, and may be explained by proof of the actual time. The question then, is, had these persons who claimed to act as trustees of Green, on the 1st of January, 1816, any authority as such? or, if they had, was the ■^original surveyed township twenty-one then subject to the [437 lease of the trustees of Green ? If the lessee, however, had entered and enjoyed, the case might be altered; he would then be estopped by the lease from denying the authority under which he entered and enjoyed. If a tenant would controvert the title of his lessor it must appear that he did not enter and enjoy. The want of title in the lessor, and the non acting under the lease, are not independent facts and defences, but one defence consisting of consecutive facts, and in that way the imputation of duplicity is avoided. The second plea is technically bad, because it sets up new matter, and concludes to the country. But, as the demurrer is general, it don’t reach that want of form. By going back to the declaration, it is only negativing the averment in the declaration. Leave is given to withdraw the demurrer and reply; 5 O. 186.