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or other tenant of the land, "where the distress was made, "enjoyed the same under a

grant or demise at a certain "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 ha-. buit 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 the 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 remedies 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,

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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

is, that a court will not allow a tenant to set up a claim against his own landlord. A man may take a lease of his own estate, but no court of justice will permit him to set up his title against his landlord." See likewise, 11 Vesey, 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 occupation. This action has 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

only be maintained, where the contract is by parole, or writing, not under seal. If the demise be by deed, the action should be brought upon the deed, and either be debt, or covenant. Wilkins v. Wingate, 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. Tatlock, 2 Hen. Black. 323. We 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 possession from him, or has paid him

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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,

C. J. So where a tenant by mistake, or misrepresentation,

pays rent to

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 forma, 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

try. The latter plea is, indeed, in the nature of the general issue in this action. Per Lord Mansfield, Warren v. Theobald, Cowp. 588. It is under this plea, or the plea of non tenuit modo et formú, that the tenant may shew that his landlord's title has determined in the manner stated above; but a suspension of the rent by eviction or expulsion must be specially pleaded; and a mere disturbance in the possession, or a trespass, is not sufficient to maintain this plea. There must be an expulsion in fact. Cowp. 242.-So, to an avowry for rent it is a good plea that, before the lessor had any thing in the land, a termor granted an annuity or rent charge, and granted and covenanted that

was

the grantee might distrain on the premises; that the annuity in arrear, and that the grantee demanded it, and threatened a distress; and that the plaintiff paid the amount of the rent due, &c. and so nothing in arrear. Taylor v. Zamira, 6 Taunt. 524.

So, to an avowry for rent, the tenant may plead payment of a ground rent to the superior landlord; and he may either plead the payment of the landlord's property tax, assessed under the 46th Geo. III. c. 65. s. 74. or he may claim it as a deduction from his rent, giving it in evidence under the plea of nothing in arrear. Clennell v. Read, 7 Taunt. 50. But the tenant cannot avail himself of any other set off.

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