McFarlane v. Kirby

Mr. Justice IVIcComas delivered the opinion of the Court: The appellant claims that the court below eri:ed in refusing to direct a verdict for the defendant, and in directing a verdict for the plaintiff, and also in directing the jury to find the sum of $129.50 as intervening rent. There was no proof of title in MeFarlane or his wife or in a third person, nor of payment of rent by McFarlane after the payment of two months’ rent to Bond. The default of McFarlane in performing his undertaking under the lease, and the repeated failure to pay the remainder of the sum-, which might have secured a conveyance of the premises by Bond to McFarlane, and the defendant’s own proof that in June, 1905, the attorneys of both parties requested Bond to convey the premises to Kirby, — indicated that there was no conditional purchase by appellant, and that both parties to the lease so agreed. This situation disposes of most of appellant’s contentions, though it is true that neither the deed to Bond nor the deed to Kirby were introduced to show legal title in either. In this proceeding, however, the lease was in evidence, as was also the assignment thereof to the appellee. The right of entry and of suit for possession of the demised premises had accrued to the appellee as assignee of the lease, and, as we have said, the failure on the part of the appellant to pay, and his consent by his attorney that Bond should convey not to him, but to the appellee, make it unnecessary that we proceed to •consider whether, if the appellant had performed, the conveyance to Bond, not offered in evidence in this suit nor directly' involved, was a mortgage, and not a deed. In this proceeding , the assignee of the lessor pursued his remedy against a tenant [395] in arrears. It appeared that tlie rent due exceeded tbe sum which the court below instructed the jury to allow. The appellant had failed to show title in himself or a third person, and did not attempt to show the payment of any rent except the two months’ rent paid to Bond. The appellant had simply remained in possession of the demised premises. The supreme court has said: “If the defendant was in possession under a lease from the plaintiff, or from anyone to whose reversion the plaintiff had succeeded, he was not at liberty to controvert the title of the plaintiff or of that reversioner while he remained in possession.” Lucas v. Brooks, 18 Wall. 436, 451, 21 L. ed. 779, 782. The familiar principle that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or a third person during the existence of the lease or tenancy, prevents the tenant from violating the very contract by which he holds possession. He cannot change the character of the tenure by his own act merely, for his possession is the possession ■of his landlord. Willison v. Watkins, 3 Pet. 43, 46, 7 L. ed. 596, 598; Peyton v. Stith, 5 Pet. 485, 491, 8 L. ed. 200, 202; Walden v. Bodley, 14 Pet. 156, 161, 10 L. ed. 398, 400. The landlord and tenant proceeding of the Code does not enable the tenant to violate this familiar rule of law. The appellant was the lessee of appellee’s assignor, was in possession when these proceedings commenced, wa,s in default in payment of rent, and had only remained in possession by virtue of this lease. His claim of a conditional resale to him by his lessor Bond wholly failed. The learned court below committed no error. This judgment must be affirmed, with costs, and it is so ordered.