without any knowledge of the title of A. The possession, it was held, for the time limited, barred the claim of A.1

434. As one cotenant cannot be disseised of any particular part of the land, unless all are disseised, so the relinquishment and yielding up to one of several tenants in common, by the disseisor, after a disseisin of five years, of all the right, seisin, possession, and betterments which the disseisor had in and to the proportion of that tenant in common in the premises, has the effect to put all the tenants in common, in the seisin and possession of their shares respectively, and to prevent the operation of the statute of limitations against any of them prior to that time.3 Where there were several tenants in common of a tract of land, some of whom were infants, and the attorney in fact of the guardian of the infants made known their claim to the settler, who agreed to pay the taxes and keep possession for the infants, without committing waste, it was held that this agreement inured for the benefit of the other tenants in common, so as to prevent the statute from running against them.1

435. All acts done by one tenant in common are to be done for the interests of all the cotenants, and in conformity to their rights, until an adverse possession is notoriously set up and established by competent proofs.5 S. gave a deed of release of his interest, as a tenant in common, in certain premises to B.; at the time of the conveyance W. was in possession and seisin of the premises, claiming them in his own right, by virtue of a purchase under a tax sale. W. was one of the tenants in common of the premises, and was the agent of S. and the other proprietors. Held that the purchase of W. must be deemed a trust for the benefit of S. and his grantee B., to the extent of their interests; that he ought to be decreed to convey the legal title to the premises, after being satisfied of all just claims, which he had against them for taxes, for the

1 Brown v. M'Coy, stated by Huston, J., in App v. Driesbach, 2 Rawle (Penn.), 305, and reported in 2 Watts & Serg. (Penn.) 307, in note (2 Penn. Dig. 224). Where a tenant in common enters and cuts timber, he is presumed to enter under his legal title, there being no other evidence of any ouster of the cotenants. Whiting v. Dewey, 15 Pick. (Mass.) 428; Shumway v. Holbrook, 1 Ib. 114.

2 Porter v. Hill, 9 Mass. 34.

3 Vaughn v. Bacon, 3 Shep. (Me.) 455. And see Farrar v. Eastman, 1 Fairf (Me.) 191.

4 Creswell v. Altemus, 7 Watts (Penn.), 566; and see also Graffius v. Tottenham, 1 Watts & Serg. (Penn.) 488.

5 Baker v. Whiting, 3 Sumn. (Cir. Co.) 476.

purchase-money laid out in the tax sale, for his expenditures and improvements upon them, and also for his reasonable services as agent in the premises, deducting all sums of money received by him in the premises, for what (in the language of the country) is called "stumpage," or otherwise. Where two non-residents held in common an unsettled tract of land, which without their knowledge was sold for the non-payment of taxes, and they afterwards made partition by mutual deeds of release and quitclaim, in common form, after which one of them, within the time of redemption, paid the tax to the purchaser at the sheriff's sale, from whom he took a deed of release and quitclaim to himself alone of the whole tract; it was held that this payment and deed inured to the benefit of them both; and that he who had not paid might maintain an action against the other for his part of the land.2

436. It has been held by a majority of the court, in a case in New York, that where an adverse possession is relied on, the plaintiff may produce evidence to show that the person whose possession is set up as adverse, entered claiming to be tenant in common, under the same title with those through whom the plaintiff claims, without being at the same time obliged to admit the fact that the adverse claimant was a tenant in common with him. But from this opinion Kent, Ch. J., dissented, and held that "the admission of a tenancy in common, under the same title, is not an admission that the plaintiff partook of that title. Nothing is more common than for adverse parties in ejectment 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."

1 Baker v. Whiting, 3 Sumn. (Cir. Co.) 476.

2 Williams v. Gray, 3 Greenl. (Me.) 207.

3 Smith v. Burtis, 9 Johns. (N. Y.) 174.

66

CHAPTER XXXIII.

LANDLORD AND TENANT.

4

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.3 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 Ch. J. Tilghman, "that a tenant shall not resist the 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

6

1 [The possession of the tenant is that of his landlord. Titons v. Emery, 17 N. H. 536.] As to permissive possession, see ante, § 384.

2 Goodtitle v. Newman, 3 Wils. 521; Willison v. Watkins, 3 Peters (U. S.), 43; Bradstreet v. Huntingdon, 5 Ib. 402; Ricard v. Williams, 7 Wheat. (U. S.) 59.

8 2 Smith's Leading Cases, 407, contained in 44 Law Lib. 403.

4 See ante, Ch. XXX.

6 Balls v. Westford, 2 Campb. 11.

5 Civil Code of Louisiana, p. 689.

and good faith between landlord and tenant. 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.* 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

1 Galloway v. Ogle, 2 Binn. (Penn.) 468. [Delancey v. Ganong, 5 Selden (N. Y.), 9.] 2 Willison v. Watkins, 3 Peters (U. S.), 43.

3 Shepley v. Lyttle, 6 Watts (Penn.), 500. See also Cholmondeley v. Clinton, 2 Meriv. Ch. 234; Hoveden v. Lord Annesley, 2 Sch. & Lefr. Ch. 633; Hodson v. Sharp, 10 East, 350; Jackson v. Reynolds, 1 Caines (N. Y.), 144; Jackson v. Whitford, 2 Ib. 215; Jackson v. Sternberg, 1 Johns. (N. Y.) Ca. 153; Straw v. Jones, 9 N. H. 400; Stearns v. Godfrey, 4 Shep. (Me.) 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. 106.

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.1 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 re-entry in case of the non-payment of the rent reserved, and there has been no payment or re-entry 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.), 344. W., in 1785, leased from M. and A. for ninety-nine years, renewable for ever, 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.) 529.

3 Doe v. Danvers, 7 East, 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 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.) 131; Grant v. Ellis, 9 Ib. 113. And see Appendix, p. xvii. and p. xxvii. It is a settled rule of the common law that, where a right of re-entry is claimed on the ground of