Bowdish v. City of Dubuque

Day, J. l landlord oomp™mfseT consideration, — It appears from the averments of the petition that plaintiff took possession of the piece of land in controversy on *he -drst day of November, 1866, and commenced erection of a dwelling house. There is no pretense that he had any interest therein, or right thereto. In about six weeks he was notified that the city owned the lot, and that he must vacate the same or pay a yearly rent for the use of it. He made diligent inquiry, and believed therefrom that the city owned the lot. There is no pretense that the city’s claim of ownership was not made in good faith. It resulted that plaintiff leased the lot for twenty-five years, commencing on the first day of January, 1867, upon the condition of paying $25 per annum rent. The settlement of the conflicting claims between plaintiff and defendant, and the prevention of litigation respecting the lot, together with the subsequent peaceable possession thereof, constituted a valid and sufficient consideration for the payment of the $125. 1 Parsons on Contracts, fifth edition, page 438,' and cases cited. In legal contemplation the effect of this contract is the same as though plaintiff had given up his naked possession, and gone into possession under the lease. He became the tenant of defendant for twenty-five years upon condition of paying a yearly rent of twenty-five dollars. And under the possession so acquired he occupied the premises a little more than six years before the suit at law was instituted, and made the [345] improvements set out in the petition. ITis possession has never been disturbed because of any failure of his landlord’s title. The ground of the judgment of eviction does not appear, but it is probable from all the averments in the petition that it was the failure to pay rent after the first five years. The plaintiff appeared in the action at law, and consented that judgment should be entered against him for the possession of the preim ises. The only material fact which is now alleged as ground for setting aside this judgment and letting the plaintiff in to defend the action, is the alleged subsequent discovery of evidence which would prove that his landlord never owned the land in controversy. 2 _._. íiispute lSaalord’s title, The principle is elementary, founded in the soundest wisdom, and resting upon the* highest considerations of justice, that' he could not have used this evidence if he had been aware of its existence at the time of the trial. A tenant caaTiat) before the expiration of his lease, and whilst in possession under it, deny his landlord’s title. This would have been the position of plaintiff if he had offered the proposed testimony at the former trial. It is true that in Tewksbury v. McGraff, 33 Cal., 237, it is said that a tenant may dispute his landlord’s title if he has not acquired possession under the landlord. This case is based upon Cornish v. Lasell, 8 B. & C., 471. In that case the tenant went into possession of the premises under one landlord and afterward attorned to another. It was held that the tenant might recognize the title of the first landlord and deny that of the last. This doctrine is unobjectionable. But in the case at bar the plaintiff was in possession as a mere trespasser, without any shadow of right. All the rightful possession - he ever acquired he derived under the defendant. In legal acceptation he acquired possession from defendant. He cannot, therefore, deny his landlord’s title. See Taylor’s Landlord and Tenant, § 629; Simons v. Marshall, 3 G. Greene, 502; Walker v. Sedgewich, 8 Cal., 398; Jackson v. De Walts, 7 Johnson, 157. This consideration seems to us to be decisive of the case. Affirmed.