deed indented. secus if the lease be by "Except (x) the lease be made by deed indented, &c.” If the lease be made by deed indented, then are both par20 E. 4. 10. 31 H 6. ties concluded (L); (y) but if it be by deed poll the (r) 45 E. 3. 7. 48. 35 H. 6. 34. 9 H. 6. 35. 14 H. 4. 22. 2. Lease by estoppel. (y) 2 E. 2. Estop. 253. 39 E. 3. 13 Pl. Com 434 18 E. 3 16. 15 E. 3. Estop. 236. 14 H. 4. 32. (Mo. 20.) (L) Leases by estoppel are such as are made by persons who have no interest at the time, or at least no rested estate, but are to operate on their ownership, when they shall acquire the same. Thus, if an heir apparent, or a person having a contingent remainder, or an interest under an executory devise, or who has no title whatever at the time, makes a lease by ` indenture, or by a fine sur concessat, and afterwards an estate vests in him, this indenture, or fine, will operate by way of estoppel, to entitle the lessee to hold the lands for the term granted to him; and this estoppel, when it becomes efficient, and can operate on the interest, will be fed by the interest; and the lease will be deemed as a lease derived out of an actual ownership. Weale and Lower, Pollexf. 54. 4 Bac. Abr. Leases (O). 2 Prest. Conv. 136. And in such case, where a lease is made by indenture, the lessor and lessee are concluded from avoiding the lease: and if an action be brought, and the plaintiff declare on the indenture, and the defendant plead that the lessor nil habuit in tenementis, the plaintiff, instead of replying the estoppel, may demur: because the estoppel appears on the record. Palmer v. Ekins, Stra. 118. 11 Mod 411. Ld. Raym. 1550. S. C. And the law is the same, if the defendant pleads what is tantamount to a plea of nil habuit in tenementis: as that the lessor had only an equitable estate in the premises. Blake v. Foster, 8 T. R. 487; and see Palmer v. Ekins, supra; and n. (M) infra. It has been determined that the assignee of a reversion may take advantage of an estoppel, because it runs with the land. Palmer v. Ekins, supra. So, where covenant was brought on an indenture of lease by the assignees of the lessor (a bankrupt); the defendant pleaded that the lessor nil habuit in tenementis; it was held bad, on general demurrer. Parker v. Manning, 7 T. R. 537. In like manner it has been adjudged, that au assignee of the lessee, under a lease by indenture, cannot plead that the lessor did not demise. Taylor v. Needham, 2 Taunt. 278. The rule, that a tenant shall not be permitted to set up an objection to the title of the landlord, under whom he holds, is not a mere technical rule, but one founded in public convenience and policy. Hence, a lessee of land in the Bedford level cannot object to an action by his landlord for a breach of covenant in not repairing, that the lease was void by the stat. 15 Car. 2. c. 17. for want of being registered; such act enacting, that "no lease, &c. should be of force but from the time it should be registered," not avoiding it as between the parties themselves, but only postponing its priority with respect to subsequent incumbrancers registering their titles before. Hodson v. Sharpe, 10 East, 350. But it seems, that, in order to give a party the benefit of an estoppel, in all cases where it is necessary to set forth a title, a good title must appear on the face of the declaration; for in Nokes v. Audor it was resolved, by all the judges, that although they would not intend a lease to be good by estoppel only, yet where it appeared on the face of the declaration to be so, the assignee of such a lease could not maintain an action for the breach of any of the covenants contained in the lease. Cro. Eliz. 373 436. So where covenant was brought against a lessee for years, on an indenture of lease, and it appeared on the declaration, that the lease was executed by a tenant for life, that the plaintiff, the reversioner, who was then under age, was named in the lease, but that the lease had not been executed by him until after the death of the tenant for life, judgment was given for the defendant, on the ground that the lease was void by the death of tenant for life; Buller, J. observing, that the court could not proceed on the doctrine of estoppel in this case, because it was admitted by the plaintiff on the pleadings, that he did not execute until after the death of the tenant før lessee is not "estopped to say that the lessor had nothing (416)* at the time of the lease made (M). A., lessee for the life of Lease for years by te nant pur autre vie, is void on death cestui que, though the lessor life. Ludford v. Barber, 1 T. R. 86. So where the plaintiff declared, that afterwards purchases by deed made between her, as attorney for I. S., on the one part, and the the reversion. defendant on the other, she demised a house to the defendant, and that he covenanted to pay the rent to I. S., and then assigned a breach, in the non-payment of the rent, to the damage of the plaintiff (the attorney): on demurrer the court held, that it appearing on the declaration that the lease was void, because it was not made in the name of I. S., whose house it appeared to be (Wilks v. Back, 2 East, 142.), and that the plaintiff only made it as his attorney, there could not be any estoppel; and then the covenant to pay the rent was void, and consequently the plaintiff could not maintain the action. Frontin v. Small, Ld. Raym. 1418. S. C.. Stra. 705. It should also be observed, that it is a rule, that no lease that can operate by way of passing an interest, will operate by way of estoppel. Infra, 45 a. p. 432. 2 Prest. Conv. 137. And where a lease, by indenture, takes effect in point of interest, which interest may be co-extensive with the lease in point of duration, but in fact determines before it, the lease may then be avoided, and the parties are not estopped from showing the facts which determined the lease; as where A. lessee for life of B. makes a lease for years by deed indented, and afterwards purchases the reversion in fee; B. dies; A. shall avoid his own lease; for he may confess and avoid the lease which took effect in point of interest, and de-. termined by the death of B. Infra, 47 b. Treport's case, 6 Co. 15 a. Brudnell v. Roberts, 2 Wils. 143. 1 Selw. 498. 4 Bac. Abr. 191. So it seems that, in an action by a lessor for a breach of covenant, on an indenture of lease, in not repairing, &c. the lessee is not estopped from showing that the lessor was only seised in right of his wife for her life, and that she died before the covenant broken; because an interest passed by the lease. Blake v. Forster, 8 T. R. 487.~[Ed.] (M) Acc. Lewis v. Willis, 1 Wils. 314. Et vid. Taylor v. Needham, 2 Taunt. 278. But nil habuit in tenementis cannot be pleaded to an action for use and occupation, Lewis v. Willis, supra; nor can it be given in evidence in this action. Cooke, Clerk v. Loxley, 5 T. R. 4. Et vid. Brooksby v. Watts, 1 Marsh. 38. 6-Taunt. 333. Neither will a defendant, who has obtained possession under the plaintiff, be permitted to show that the plaintiff's title has expired, unless he solemnly renounced the plaintiff's title at the time, and commenced a fresh holding under another person. Proof of payment of rent to a third person claiming title is not sufficient, without a formal renunciation of the plaintiff's title. Balls v. Westwood, 2 Camp. 11. But where a tenant by mistake, or misrepresentation, pays rent to a person not entitled to demand it, he will not be precluded by such payment from giving evidence, on a plea of non tenuit in replevin against the supposed landlord, to prove that the latter is not entitled to the rent. Rogers v. Pitcher, 1 Marsh. 541. And it has been determined, that to an avowry for rent the tenant may plead payment of a ground rent to the original landlord, on the principle that the ground rent was a prior charge on the land. Sapsford v. Fletcher, 4 T. R. 511. So he may plead payment of an annuity, secured out of the lands demised previously to the demise to him, for the arrears of which the grantee of the annuity had threatened to distrain; for a payment to a party having a prior charge on the land, and threatening to distrain if that be not satisfied, will be considered as a payment to the immediate landlord. Taylor v. Zamira, 2 Marsh. 220. And it seems that, in such case, if the sum paid by the tenant exceeds the rent due to his landlord, it will create an assumpsit on the part of the landlord to repay him such excess, as money paid to his use. Per Burrough, J. Id. 226. Note, that the action for use and occupation is given by stat. 11 Geo. 2: (417) B., makes a lease *for years by deed indented, and after purchases the reversion in fee; B. dieth, A. shall avoid his own lease, for he may confess and avoid the lease which took effect in point of interest, and determined by the death of B. (N). But if A. had nothing in the land, Lease for years by one having no interest, but and made a lease for years by deed indented, and after who afterwards purchases the land, is good purchase the land, the lessor is as well concluded as the by estoppel. lessee to say, that the lessor had nothing in the land (21); and here it worketh only upon the conclusion, and the lessor cannot confess and avoid, as he might in the other So where a man takes rendering rent: secus as to a lease of case. (z) If a man take a lease of his own land by deed ina lease of his own land, dented, reserving a rent, the lessee is concluded. (a) But if a man take a lease of the herbage of his own land by deed indented, this is no conclusion to say, that the lessor had nothing in the land, because it was not made of the land itself: (b) but if a man take a lease for years of his own land by deed indented, the estoppel doth not continue after the term ended (22). (a) Resolved Pasch. 2 Eliz. in Communi Banco. (Cro. Cha. 110.) (6) Mich. 31 & 32 El. in Communi Banco, (418)* Estoppel determines by adjudged in London's case. For by the making of the lease, the estoppel doth the ending of the term. grow, and consequently by the end of the lease, the estoppel determines (23), (c) and that *part of the inden (c) 38 H. 6. 24, *48 a. (21)" Et videtur, that by pur- (22) "Vid. 4 II. 6. 7. denture to disseisor, he shall not have assise during this lease." Hal. MSS.-[Hargr. n. 12. 47 b. (308.)] (23) "30 E. 3. 21. Vid. 14 H.6. 22. per curiam. But if it be estoppel by matter of record, as by fine, &c. it continues after. 2 E. 4." Hal. MSS.-(Hargr. n. 13. 47 b. (309).] c. 19. s. 14, whereby it is enacted, that landlords, where the agreement is not by deed, may recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defendant, in an action on the case, for the use and occupation of what was so held or enjoyed; and if, in evidence on the trial of such action, any parol demise, or any agree. ment (not being by deed), whereon a certain rent was reserved, shail appear, the plaintiff in such action shall not therefore be nonsuited, ut may make use thereof as an evidence of the quantum of the damages to be recovered. See post, Chap. 54.-[Ed.] (N) In Gilman v. Hoare, 1 Salk. 275, Holt. C. J. observed, that the reason of this case was, because tenant for life has a freehold; which is ture which belonged to the lessee, doth after the term ended belong to the lessor, which should not be if the estoppel continued (o). 43 b. 3. By whom leases may #44 a. When Littleton wrote, many persons might make leases for years, or for life or *lives, at their will and pleasure, be made. which now cannot make them firm in law. And some persons may now make leases for years, or for life or lives (observing due incidents), firm and good in law, who of themselves could not so do when Littleton wrote, and this by force of divers acts of parliament (d); as (d) 32 H. 8. cap. 28, 1 Eliz. not printed namely, 32 H. 8, 1 Eliz. 13 Eliz. and I Jac. Regis. of but in the Abridge13 Eliz. cap. which statutes one is enabling, and the rest are disabling ment. 10. 18 Eliz. cap. 6. When Littleton wrote, bishops with the confirmation of 1 Jac. cap. 3. the dean and chapter, master and fellows of any college, deans and chapters, master or guardian of any hospital and his brethren, parson or vicar with the consent of the patron and ordinary, archdeacon, prebend, or any other body politic, spiritual, and ecclesiastical (concurrentibus hiis quæ in jure requiruntur), might have made leases for lives or years, without limitation or stint. And 5 Co, 14. case de Ee, so might they have made gifts in tail or states in fee at clesiastical Persons. 11 Co. 66. Magdalen their will and pleasure, whereupon not only great decay College case. L'Evess of divine service, but dilapidations and other inconve- que de Sarum's case. niences, ensued, and therefore they were disabled and (1 Sid. 162.) restrained by the said acts of 1 Eliz. 13 Eliz. and 1 Jac. Regis, to make any state or conveyance to the king at all, or to the subject; but there is excepted out of the restraint or disability, leases for three lives, or one-and 10 Co. 60, 61. a greater estate, and the lease will not require any estoppel, if the life endure.-[Ed.] (0) That a lease for years may operate as to part by estoppel, and as to the residue by passing an interest, see Gilman v. Hoare, 1 Salk. 275. But it is a rule, that estoppels ought to be mutual, otherwise neither party is bound by them; therefore if a man takes a lease for years of his own lands from an infant or feme covert by indenture, this works no estoppel on either part, because the infant or feme covert, by reason of their disability to contract, are not estopped. Post, 352 a. Cro. Eliz. 37.700. A lessor is not estopped by his deed from going into evidence to show that a cellar, which is situate under the demised premises particularly described, was not intended to be demised. Doe, d. Freeland v. Bent, 1 T. R 701. See further as to estoppel, post, 352 a. Book III. Chap. 6, Of Pleading.-Ed.) VOL. II. 3 (Cro. Cha. 16. 47. 50. appear. 10 Co. 58. Pollexf. 134. 4 Mod. 16. Finch. 191, 192, 193. Cro. Cha. 48. Cro. (419)* By stat. 32 H. 8. tenants in tail may make leases for three twenty years, with such reservation of rent, and with such other provisions and limitations, as hereafter shall Also they may make grants of ancient offices of necessity with ancient fees, concurrentibus hiis quæ in jure requiruntur, for those grants are not within the statute of 32 H. 8. but by construction, they are not restrained by the statutes of 1 Eliz. and 13 Eliz. because these ancient offices be of necessity, and with the ancient fees, and so no dimunition of revenue (24). There be three kinds of persons that at this day may make leases for three lives, &c. in such sort as hereafter tives or 21 years, so as is expressed, which could not so do when Littleton wrote, to bind their issue; and eeclesiastics, seised jure ecclesiæ, so as to bind their successors; and husband and wife, viz. First, any person seised of an estate tail in his own right. Secondly, any person seised of an estate in fee-simple in the right of his church. Thirdly, any husband and wife seised of any estate of inheritance in fee-simple or fee-tail in the right of his (24) "Vid. 29 Eliz. Case of the Bishop of Chester, who had anciently used to have a counsel who had a fee. This grantable by the bishop with consent of dean and chapter. Nota, though it be not an office of time which, &e. yet grantable, if of necessity, as in the case of the Bishop of Gloucester, founded within time of memory. M. 1 Car. C. B. Crook, n. 8. Cook and Young. Vide that it is holden, that though it be a new office, yet if necessary, and the fee is reasonable, being confirmed, it shall bind the successor; and ride the grant of ancient office and fee, with the addition of a new fee, which notwithstanding seems good, because the office is ancient. M. 2 Car. C. B. Crook, n. 7. Gee's case. If it had been usual to grant an ancient office to one only, a grant to two is not good. But if it has been once granted to two or granted in reVersion before the statute 1 Eliz., then it shall be intended to have |