Jackson ex dem. Colton v. Harper — 5 Wend. 246

Majority

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Jackson, ex dem. Colton, vs. Harper.

Headnote

A tenant cannot set up an outstanding title in a third person holding directly by letters patent from the state, in an action of ejectment against him by his landlord, or by those deriving title from the landlord.

The acceptance of a lease by the tenant from such third person is a frauda, lent attornment; and notwithstanding such title and the lease under it, the original landlord is entitled to recover on proof of the acknowledgment of the tenant that he entered under him into possession of the premises.

This was an action of ejectment, tried at the Madison circuit in March, 1829, before the Hon. Nathan Williams, one of the circuit judges.

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The lessor of the plaintiff deduced title to the premises in question, being part of lot No. 78 in the Canastola tract, in the town of Lenox, by the production of a deed from Barn harcll Jfellis to Toleration II. Hiding, bearing date 1st October, 1834, containing a covenant of warranty, and a quitclaim deed from Hiding to him, bearing date 1 Sth May, 1837; and proved that in the spring and fall of 1828, the defendant acknowledged himself the tenant of Earnhardt Jfellis: in the spring, the defendant told one witness that he was about renewing his contract with Earnhardt Nellis for the place where he then lived ; and in the fall, he told another witness that he hired the premises of Earnhardt Nellis.

On the part of the defendant, letters patent of the premises in question from the state to John 33. Jfellis, bearing date 18th February, 1829, were produced; and also a lease of the premises from John D. Nellis to the defendant for the term of one year, bearing date 1st April, 1828. The counsel for the defendant proved the hand writing of John D. Nellis, subscribed to the lease as lessor, and testified that the lease was put into his hands, for the purpose of defence, in the fall of 1828, after the commencement of this suit. It was further proved, on the part of the defendant, that John D. Nellis owned many lots of land in Lenox, and that Earnhardt Nellis, who is his son, had had the agency and charge of the same for several years; John D. Nellis not residing in Lenox. The admissions of the defendant as to his tenancy under Earnhardt Nellis were proved previous to the production of title on the part of the defendant.

The judge was of opinion that title derived from the state having been shewn in John D. Nellis, and the defendant having taken a lease from him, the defendant could not confess away the rights of his landlord ; under his recommendation, however, the jury found a verdict subject to the opinion of this court.

JV°. P. Randall, for plaintiff.

J. Jl. Spencer, for defendant.

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By the Court,

The evidence establishes the fact that the defendant entered into possession of the premises in question, as tenant., under Earnhardt Nellis, and continued to hold under and acknowledge that title down to the fall of 1828. Nothing is better settled, as a general rule, than that a tenant cannot deny the title of his landlord ; and the acknowledgment by a defendant that he went into possession under the title of the lessor of the plaintiff, is sufficient to enable the plaintiff to recover. Jackson v. Dobbin, 3 Johns. R. 223, 225, note a. Jackson v. Leeson, 3 id. 499. 4 id. 210. Jackson, ex dem. Bowne, v. Hinman, 10 id. 292. Jackson v. De Watts, 7 id. 157, notes a. and b. and cases there collected.

The defendant introduced a patent from the stale to John. D. Nellis for the premises in question, bearing date the 18th day of February, 1829, and a lease from John D. Nellis to himself for the same premises, for one year, dated the 1st April, 1828. This evidence was given before the acknowledgment of the defendant that he entered upon and held the premises under Earnhardt Nellis had been proved. It was competent evidence, therefore, at the time it was given, and was not and could not have been objected to. But its legal effect, when taken in connection with all the other evidence in the case, is now to be decided. A title in the state has no peculiar attributes which enure to the benefit of a defendant under circumstances in which be could not ax’ail himself of an outstanding title in an individual. A defendant is estopped from contesting the title under which he entered, in any manner, as against his original landlord, or any other person who has acquired or succeeded to his title. He can no more show that the premises belonged to the state, than he can that they belonged to himself; he must first restore the possession which he obtained from his landlord, and then, as plaintiff, he may avail himself of any title which he has been or may be able to acquire.

But it was contended, upon the argument, that notwithstanding the admission of the defendant that he entered under Earnhardt Nellis, it was fairly to be inferred from the whole evidence that Earnhardt Nellis, in putting him into

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possession, acted as the agent of his father John D. Nellis, who at that time, it is said, had an imperfect title to the lot in question, which was subsequently consummated by the patent obtained by him from the state. The only evidence upon this subject is, that John D. Nellis was the tailier of Earnhardt Nellis, and owned many lots of land in Lenox, of which Earnhardt had had the agency and charge for several years. The witness did not say that he ever understood that John D. Nellis .owned the lot in question, or that in relation to that lot Earnhardt ever acted as his agent; and no such inference could legalljr be drawn from his testimony, were there no other evidence upon this subject in the case. But it will be recollected that Earnhardt Nellis, in October, 1824, conveyed this lot with warranty to Hiding, which effectually repels the idea that he acted in relation to it as the agent of his father.

It is also contended that the title of John D. Nellis was not to be affected by the confessions of the defendant, inasmuch as he held under the lease from him of the 1st of April, 1828. If the defendant originally entered under the title of Earnhardt Nellis, as I have endeavored to shew he did, then the taking of a lease from John D. Nellis was a fraudulent attornment, by which the lessor of the plaintiff cannot be prejudiced. It was an absolute nullity, and did not create the relation of landlord and tenant between the parties to it. It does not clearly appear when the defendant first entered upon this lot; but in the spring of 1828, he stated that he was about renewing his contract with Earnhardt Nellis for the place where he then lived. It may fairly be inferred from this circumstance that he had occupied the lot for at least the preceding year. It is also to be observed that this declaration was made in the spring of 1828, and may have been before the 1st of April, when the lease from John D. Nellis bears dale, if that were a circumstance of any importance in the case.

It is not necessary for us to express any opinion as to the effect of the patent for the lot to John D. Nellis. Whatever

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may be its operation and effect between other parties, the defentiant cannot avail himself of it in this action. The plain-tiff is therefore entitled to judgment.