ment to claim under the same title; yet the entry of one party is not the entry of the other, but upon the assumption that they are cotenants in the same title and interest. They may be sharers in that interest in very different degrees and proportions, but still there must be a cotenancy to establish the privity." CHAPTER XXXIII. LANDLORD AND TENANT. § 437. THE law in respect to possession as between landlord and tenant, is, that the possession of the tenant, like that of one of several tenants in common, is prima facie a permissive one,1 and consequently affords of itself no presumption of an adverse holding.2 It has been considered, too, as a branch of the law respecting reversioners, though there are some peculiar considerations applicable to the former. By the term landlord, says the learned annotator just referred to in the note below, is, as he understands, "a reversioner in the actual receipt of the rent of the land." No time, as has been shown in a former chapter, runs against a reversioner during the continuance of the estate of him who has been constituted tenant for life or years, and so no time runs against a lessor, whether the lessee be a tenant for years under a written lease, or whether he be a tenant at will or at sufferance. It is an invariable rule of the common, as well as of the civil law, that those who possess, not for themselves, but in the name of another who is acknowledged as owner, cannot acquire the legal possession, because at the commencement of the possession they had not the intention of possessing for themselves, but for another." 5 "Unless the lessee," says Lord Ellenborough, "by a formal act, renounces the lessor's title, his possession can never be adverse; and if it were otherwise, the security of landlords would be infinitely endangered." "It is the settled law of this country," in the language of the learned C. J. Tilghman, "that a tenant shall not resist the 6 1 As to permissive possession, see ante, § 384. 2 Goodtitle v. Newman, 3 Wils, R. 521; Willison v. Watkins, 3 Peters (U. S.), 43; Bradstreet v. Huntingdon, 5 id. 402; Ricard v. Williams, 7 Wheat. (U. S.) R. 59. 3 2 Smith's Leading Cases, 407, contained in 44 Law Lib. 403. 4 See ante, Ch. XXX. 5 Civil Code of Louisiana, p. 689. • Balls v. Westford, 2 Campb. R. 11. recovery of his landlord, by virtue of an adverse title acquired during his lease." The principle he asserted was founded on sound policy, because it had a tendency to encourage honesty and good faith between landlord and tenant.1 In the language of the Supreme Court of the United States, "It is an undoubted principle of law fully recognized by this court, 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 a lease or tenancy. The principle of estoppel applies to the relation between them, and operates with full force to prevent the tenant from violating that contract by which he claimed and held the possession. He cannot change the character of the tenure by his own act merely, so as to enable himself to hold against his landlord, who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered by its termination." 2 Where the plaintiff and defendant were, with other children, devisees of the real estate of their father, and the defendant was, at the time of his father's death, tenant of the land under a lease, which did not expire until five years after the death of the testator, and three years after the father's death, the defendant and the other devisees, made a partition of the real estate to the exclusion of the plaintiff, and the defendant continued in exclusive possession for more than the time limited by the statute, after the death of the testator; it was held, that the statute did not begin to run until the expiration of the lease, notwithstanding the adverse holding under the partition.3 § 438. In the case of a lease given for a great number of years, even if no part of the rent reserved has been paid by the lessee, or his representative, within the time limited for the right of entry, to the lessor, or his representative, the right of entry is not defeated.* 1 Galloway v. Ogle, 2 Binn. (Penn.), R. 468; [Delancey v. Ganong, 5 Selden (N. Y.), 9]. 2 Willison v. Watkins, 3 Peters (U. S.), R. 43. 8 Shepley v. Lyttle, 6 Watts (Penn.), R. 500. See also, Cholmondely v. Clinton, 2 Meriv. Ch. R. 234; Hoveden v. Lord Annesley, 2 Sch. & Lefr. Ch. R. 633; Hodson v. Sharp, 10 East, R. 350; Jackson v. Reynolds, 1 Caines (N. Y.), R. 144; Jackson v. Whitford, 2 id. 215; Jackson v. Sternberg, 1 Johns. (N. Y.), Ca. 153; Straw v. Jones, 9 N. H. R. 400; Stearns v. Godfrey, 4 Shep. (Me.), R. 158. 4 Orrell v. Maddox, reported in App. p. 1 to Runn. on Eject. And so held by Lord Redesdale in Saunders v. Annesley, 2 Sch. & Lefr. R. 106. Thus, where it was contended, that an abandonment of title was to be presumed, inasmuch as there was no proof of the payment of rent, nor of any acknowledgment of tenancy within twenty years; the court held, there was a material distinction between the presumption of payment of money and the execution of a release, or the extinguishment of a right to rent. And that such release and extinguishment could only be by deed. And the doctrine was fully recognized by the court in this case, that when the relation of landlord and tenant had been once established under a sealed lease, the mere circumstance, that the landlord has forborne to demand rent, will not justify the presumption, that he has forfeited his right to it. The right of a tenant, or one claiming under him to set up an adverse possession, it was held in another case, does not depend upon the landlord's right to receive rent, but upon the power to enter. Accordingly, the decision was, that where the defendant in ejectment set up an adverse possession in one, who, as was shown, entered under the plaintiff's ancestor, by virtue of a lease for years reserving an annual rent; it was held, that the lease was sufficient to repel the defence, though the circumstances were such as to warrant the presumption of an extinguishment of the entire rent shortly after the term commenced.2 It has been held, moreover, that if a lease contains a clause of reentry in case of the non-payment of the rent reserved, and there has been no payment or reëntry for twenty years, the right of entry is still preserved.3 1 Jackson v. Davis, 5 Cow. (N. Y.), 123. 2 Failing v. Schenck, 3 Hill (N. Y.), R. 344.-W., in 1785, leased from M. and A. for ninety-nine years, renewable forever, a lot of ground, at a fixed annual rent, and covenanted in the lease to pay the rent. He entered upon the land, and paid the rent until 1803. The lease was not legally acknowledged or recorded. In 1812, M. and A. brought an action of covenant at law against W., to recover the rent then due, and failed, because of the defective execution and acknowledgment of the lease. W., and those claiming under him, remained in undisturbed possession of the property. In 1813, M. and A. filed their bill in chancery against W., to compel him to account for the rents from 1803, and to accept a new lease formally executed. W. afterwards died, and the suit was revived against his executors. Held, that the complainants were entitled to recover the rents, with interest, and that neither the judgment at law, nor the act of limitations, could affect their claim; but that the executors of W. were not bound to accept a new lease. Williams's Executors v. Annapolis, 6 H. & Johns. (Md.), R. 529. 8 Doe v. Danvers, 7 East, R. 299. By statute of 3 & 4 Will. IV., a lessor is a reversioner agreeably to the third section; and it has been accordingly held, that, by a discontinuance of the receipt of the rent alone, for more than twenty years, he is not prevented from recovering the premises at any time within twenty years from the determination of the lease. Neither does the discontinuance of the receipt of the rent for § 439. On the principle, that a tenant shall not resist the recovery of his land by an adverse title acquired by possession, it has been held, in England, that, if a cottage is built upon a manor, by the lord's permission (or any acknowledgment has ever been made, though it were a hundred years since), the statute of limitations will not run against the lord. In such a case, the cottager is deemed a tenant at will.1 Where, also, the defendant inclosed a small piece of waste land, by the side of a public highway, and occupied it for thirty years, without paying any rent, and, at the expiration of that time, the owner demanded sixpence rent, which was paid on three several occasions, it was held, that this, in the absence of other evidence, was conclusive to show, that the occupation of the defendant began by permission, and entitled the plaintiff to a verdict. The payment of the rent was treated by the court as conclusive evidence that the former occupation by the defendant was a permissive, and not an adverse occupation.2 By the statute of 3 and 4 Will. IV., in the case of a tenancy at will, the limitation begins at the termination of the tenancy, and the tenancy at will shall be deemed to have determined at the expiration of one year after the commencement of such tenancy.3 § 440. The possession of a defendant, after a sale under an execu more than twenty years amount to a forfeiture of the lessor's right to the arrears of rent, as the second section does not apply to rent on a demise; but the lessor may recover the arrears for twenty years, or for six years; for the former if under seal, and for the latter if by parol. Davy, dem. v. Oxenham, 7 Mees. & Welsb. (Ex.), R. 131; Grant v. Ellis, 9 id. 113. And see Appendix, p. xvii. and p. xxvii. It is a settled rule of the common law, that, where a right of reëntry is claimed on the ground of forfeiture for non-payment of rent, there must be proof of a demand of the precise sum due, at a convenient time before the sunset on the day when the rent is due, upon the land, in the most notorious place of it, even though there be no person on the land to pay. 1 Saund. R. 287 (note 16); Connor v. Bradley, 1 How. (U. S.), R. 211. It was held, in South Carolina, that, after a very great lapse of time, and an omission to pay rent, a dissolution of the relation of landlord and tenant may be presumed. Moore v. Turpin, 1 Spear (S. C.), R. 32 (Court of Appeals). 1 Bull. N. P. 104. 2 Doe v. Wilkinson, 3 Barn. & Cress. R. 135. And see Fenner v. Duplock, 2 Bing. R. 10. [In Doe v. Bickett, 12 L. J., N. s. 236, Q. B., s. c. 7 Jurist, 532, the following answer made to an agent of the landlord by the tenant. "I have no property in W. but what I hold of Lord S., for which I pay £100 a year," was held sufficient evidence of payment if not under § 8, of 3 and 4 Will. IV., c. 27, to prevent an adverse right running against the landlord.] 3 See comments on this part of the act, Appendix, p. xxvii. |