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1817.

PARRY

v.

HOUSE.

these cases, therefore, with some few exceptions, which will be pointed out, as depending upon other principles, the law will not permit the tenant to dispute the title of his landlord in an action for rent.

It may, indeed, sometimes happen, that the tenant may have taken the land from a landlord holding it upon a bad title, and, under these circumstances, may be compelled to pay his rent twice over; but the mischief of this is only temporary, as the law gives him a remedy in an action. against the wrongful taker. In fine, when it is considered how many titles rest solely upon possession, and how frequently, from the loss of title deeds, incumbrances, family settlements, and trusts, it becomes impossible for a landlord to shew, on an emergency, any other title than a long and undisturbed possession, (without the assistance of a court of equity) it will be easy to understand the reason and policy of the law, by which tenants are restricted from abusing a possession, procured by confidence, to the injury of their landlords; whether for the purpose of withholding the payment of their own rent, or of collud

ing with strangers in a claim upon the land with the advantage of possession on their side. All law, in fact, must proceed upon general prin ciples; and possession is such a strong presumption of right, that the law has necessarily invested it with much of the nature and character of it. In this branch of the law, however, there is some nicety and difficulty.

The following seems the fair result of all the cases:

1. Nil habuit in tenementis, which was the technical mode of denying the landlord's title, was a bad plea to an avowry for rent, at common law. Before the statute 11 Geo. II. c. 19. the defendant in replevin was obliged to set out a title in his avowry; and, if he avowed, and did not set out a title, it was bad. Therefore, where the defendant avowed for rent, setting forth that he was possessed of the premises, and the plaintiff replied nihil habuit in tenementis, the defendant rejoined quod satis habuit, and the plaintiff demurred to this rejoinder; the Court said, that the title should be shewn in the avowry, and was not proper in the rejoinder, 3 Salk. 305. And, per HOLT, C. J. 2 Show. 485. in an avowry, where a title is

The

set out, the plaintiff is bound to traverse some particular point. It is clear, therefore, that the plea of nil habuit, &c. could have been no answer to an avowry at common law. stat. 11 Geo. II. was passed with the view of obviating the difficulties which often arose in stating long and intricate titles. It enacts, "That "it may be lawful for de"fendants in replevin "avow or make cognizance "generally, that the plaintiff

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or other tenant of the land, "where the distress was made, "enjoyed the same under a 66 grant or demise at a certain 66 rent, during the time where"in the rent distrained for was "incurred, which rent was "then and still remains due, "without setting forth the "grant, tenure, demise, or "title, of such landlord, or "lessor, &c." This clause has effectually taken away the tenant's right to controvert his landlord's title in replevin. In the same manner, if a lease be by indenture, the lessee and all claiming under him are precluded from pleading nil habuit in tenementis to an action brought by the lessor, or his assignee. For the indenture operates as an estoppel. Palmer v. Ekins, Lord Raym. 1550. 2 Strange, 817. Comyn. 391. Parker v. Manning, 7

Term Rep. 539. Sullivan v. Stradling, 2 Wilson, 208. 2. So, in an action of debt for use and occupation, nil habuit in tenementis is a bad plea, and cannot be given in evidence under nil debet: because, to maintain this action, the plaintiff must shew a contract with the defendant, which contract is an admission of the plaintiff's possession; and, therefore, in this action the plaintiff cannot recover on the strength of his title, without shewing a taking by the tenant, or an attornment, which is an admission of his title. In the same manner, in an action of assumpsit for use and occupation, nil habuit in tenementis is a bad plea; for this action is founded upon a personal contract, in which it is not necessary for thè plaintiff to shew any title; and, upon proof of the use and enjoyment of the premises by the defendant, he is entitled to recover a compensation. It is, however, to be observed, that the action for use and occupation is not coextensive with the action on a contract for rent upon a demise, nor with all the reme. dies for the recovery of rent. It is merely collateral to these remedies; and if the defendant has, in fact, occupied by the permission of the plaintiff,

1817.

PARRY

v.

HOUSE.

1817.

PARRY

v.

HOUSE.

though the plaintiff have, in truth, no title, or a defeasible title, or perhaps an equitable title only, the action may be maintained. 5 T. R. 4 1 Wilson, 314. Bull. N. P. 139. Nash v. Tatlock, 2 H. Black. 323. Therefore, in an action for use and occupation by an incumbent against a tenant of the glebe land, who has paid the incumbent rent, the defendant was not suffered to give evidence of a simoniacal presentation of the plaintiff, in order to avoid his title. 5 T. R. 4. And, in a similar action, where the defendant had come in under the plaintiff, Lord Ellenborough would not even permit him to shew (what in any other action for rent, or in replevin, may be shewn,) that the plaintiff's title had expired, unless he had solemnly renounced the title at the time, and commenced a fresh holding under another person. 2 Campb. 11. So, a lessee of land in the Bedford level was not permitted to object to an action by his landlord, for a breach of covenant, that the lease was void, by the 15 Ch. II. c. 17. for want of being registered. Hodson v. Sharpe, 10 East. 351. For it is an universal rule that a tenant shall not be permitted to set up an objection to the title of

his landlord, under whom he held that this was not a mere technical rule, but one founded in public convenience and good policy.-Per Lord Ellenborough. And, in Frogmorton v. Scott, 2 East. 467. it was held, that a rector, whose own lease was avoided by nonresidence, might recover in ejectment against his own lessee. And, in Doe v. Smythe, 4 Maule and Selw. 347. it is said, that when the tenant in possession pays rent to the lessor, and then disclaims, he ought to give back the possession. "It has been often ruled, that neither the tenant, nor any one claiming by him, can controvert the landlord's title. He cannot put another person in possession, but must deliver up the premises to his own landlord. This, I believe, has been the rule for twenty years. I remember it was so laid down by Buller, J. on the western circuit."-Per Dampier, Justice.

Courts of equity concur with the courts of common law in this principle; and, for the reasons upon which the principle itself is founded, they extend it further. In 2 Vesey, jun. 696, Lord Loughborough, Chancellor, says, "You cannot act ; you cannot come forth to a court of justice, claiming in repugnant rights. Upon that it

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is, that a court will not allow
a tenant to set up a claim
against his own landlord.
man may take a lease of his
own estate, but no court of
justice will permit him to set
up his title against his land-
lord." See likewise, 11 Ve-
sey, 344.

3. Nil habuit in tenementis is, however, a good plea, in debt for rent upon a lease,-not by deed indented; for where there is a demise by deed, a seisin, and a right to make the lease, is the foundation of the action for rent. If the landlord had no title to demise, the tenant has not a quid pro quo; and he must pay the rent to the owner of the land. 2 Wils. 208. And to a plea of nil habuit, the plaintiff might plead quod satis habuit.

The ancient method of declaring in debt for rent is now, however, seldom had recourse to, being superseded by the modern action for use and ocThis action has cupation. many conveniences, inasmuch as the plaintiff is allowed to declare generally, and to produce the contract in evidence in support of his declaration. He is not called upon to state any of the particulars of the demise, or even the place where the premises lie. But this action, it is to be observed, can

1817.

If the

PARRY

v.

only be maintained, where the
contract is by parole, or writ-
ing, not under seal.
demise be by deed, the action
should be brought upon the
deed, and either be debt, or
covenant. Wilkins v. Win-
gate, 6 T. R. 62. King v.
Fraser, 6 East. 348. In this
action a landlord, who has
rent owing to him, is allowed
to recover, not the rent, but
an equivalent for the rent, a
reasonable compensation for
the use and occupation of the
premises; and it is premised
in his behalf that if the demise
be produced against him, (if
it be not a deed) it shall
not defeat his action, as it
would have done before the
statute 11 Geo. II. c. 19; but
the fixed rent shall be only
used as a medium to ascertain
the damages. Nash v. Tat-
We
lock, 2 Hen. Black. 323.
have already shewn that the
tenant cannot, in this form of
action, dispute the title of his
lessor.

4. There are, however, cases
in which the tenant is permit-
ted to controvert his landlord's
title, in some cases directly, in
other cases indirectly. It is,
indeed, a general maxim that
the tenant shall not dispute his
lessor's title in a case where he
has originally received posses-
sion from him, or has paid him

HOUSE.

1817.

PARRY

v.

HOUSE.

rent. But there are exceptions even in this case; for, although receiving possession from the landlord is the strongest presumption of title, yet even there, the tenant may shew that the landlord's title has ceased; that it has been recovered from him by a judgment at law, and that he has no right to turn him out of possession; or that the lessor has assigned or granted over the reversion. England v. Slade, 4 T. R. 682. Jackson v. Ramsbottom, 3 Maule and Selw. 316. But the tenant, whilst the lease subsists under which he has been let into possession, will not be permitted to shew that his lessor had no title at the time of the demise, though he may shew the expiration of that title. And he may shew that his lessor's title has expired in an action of debt for rent, reserved upon a deed indented, where he would be estopped to plead nil habuit in tenementis. Palmer v. Ekins Lord Raym. 1552. So, in debt for rent, a tenant who has agreed in writing to hold premises at a certain rent, may allege that the party with whom he made the contract never had any interest in the premises, if such party never was in possession; otherwise not, 2 Lord Raym. 746, per Holt,

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C. J. So where a tenant by mistake, or misrepresentation, pays rent to a person not entitled to demand it, he is not precluded by such payment from giving evidence, in a plea of non tenuit modo et formá, against the supposed landlord, to shew that he is not entitled to the rent. Rogers v. Pitcher, 1 Marsh, 541. In this case, however, the plaintiff did not originally receive possession from the avowant. Paying rent is, indeed, a strong presumption; and the presumption of title must be infinitely stronger where the tenant receives possession from the lessor; yet, even in this case, the continuance of the lessor's title may be disputed, though the tenant cannot maintain possession of the land, and contend that the landlord had originally no right to demise. So, in every plea of eviction, there is an averment that the lessor had not a perfect title when he demised. But the plea of eviction is not sufficient, unless it be added as a fact, that the lessee was in consequence ousted. Cowp.

242.

5. In replevin, however, the tenant may always deny the demise and tenancy, and that any rent was in arrear; concluding each plea to the coun

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