Dec. 1829.

#### John Doe ex dem. of Thomas B. Smart et al. v. Arthur Smith,

^>From Mecklenburg.

The doctrine of estoppel has been beneficially applied to prevent tenants from denying the titles of their landlords, during the continuance of the lease, and also of the possession gained under it.— But the estoppel is dependant upon the estate, and the possession consequent upon if, and after the lease has expired, and the possession fairly surrendered, the lessee is remitted to any title be had in the land before the relation of landlord and tenant commenced.

In this action the lessors of the Plaintiff claimed title to the lands represented in the annexed plot, by the lines ABODE and F, under a Sheriff’s deed, dated June 25th, 1795, reciting a sale for the taxes. The Defendant claimed title to the lands represented in the plot by the lines GBIKL & M, under a deed from the Sheriff to one Purser, dated October 26th. 1795, and also re. citing a sale for taxes,.

On the part of the lessors of the Plaintiff, it was proved that their father George Smart, died in the year 1810, that Pwrser was then in possession of a field containing about three acres, which is laid down in the plat, and rjs* *259presented by the lines a b c & (1 — that the executors o! Smart being about to commence a suit against him, he on the 16th of July, 1814, executed the following instru-naent :

“ On or before the first day of January next, I promise to pay or cause to be paid unto the executors of George Smart, deceased, their order or assigns, at the rate of one dollar per acre for the rent of a certain piece of land under my enclosure, belonging to the heirs of said deceased supposed to be about three acres.-”

Tiie Defendant then offered to prove, that after the year 1814, and up to the time of the deed of Purser to him, viz. the year 1823, the possession of the land included within the lines G- II l K JL & M, had been abandoned — that the Defendant took possession after receiving his deed, and that. Purser had been in the actual adverse possession of the land represented by the last mentioned lines, for more than seven years before the year 1814. Bat bis honor Judge Norwood, being of opinion that Purser and all claiming under him, after the year 1814, were estopped to deny the title of the lessors of the Plaintiff, rejected the evidence.

Upon this, as the title of the lessors of the Plaintiff was the oldest, and seven years possession by the Defendant under his deed from Purser, was not pretended, a verdict wasjreturned for the Plaintiff and the Defendant appealed»

Gaston, for the Plaintiff.

No Counsel appeared for the Defendant.

Ruffin, Judge.

The Court below held the lease by Purser conclusive evidence against the Defendant. I think that was erroneous, though it was probably evi-' deuce to some purposes.

St is not to be clearly gathered from the bond, whether the land leased by Purser in 1814, was within the lines of his own deed, or not. The words are, •* for the rent of a certain piece of land under my enclosure, belong*260ing to the heirs of Smart, supposed to be about three acres.” The field as laid down in the plat, included a small portion within Purser’s lines, and another small portion without them, but within the lines of Smart’s deed. The bond does not specify for which of those two pieces the rent wras to be paid. Nor does the other evidence make it more specific ; for the case states only, that the land leased is situate within Smart’s boundaries. But that is the fact with respect to both parts.

If in fact, Purser did not lease any part of the-land covered by Ms own deed, his lease was not evidence to any purpose in this suit. It proved nothing touching the tenure or title to his own tract, as it related to one wholly distinct.

But I suppose it is a fair inference from the opinion of theTudge, that the land leased was that part of the field lying within Purser’s lines. In that case, the lease was evidence. It forms a circumstance in a question of boundary. It also proves a fact, from which, in a question of title, a jury may infer, as it is supported or rebutted by other circumstances, the true nature of the previous possession by Purser, of that and other parts of the tract. The inference would be very strong or very weak, according to those attendant circumstances, and as it might be applied to the particular part leased, or other parts of the land. If, for instance, it were proved, that Purser had at a previous time treated with Smart for the occupation of the very same field, the bond would be very cogent proof, that he always held that field under Smart, although the precise contract of lease might not be proved. But when applied to other parts of the tract, the whole force of it would be repelled, by proof that Purser was actually living on, and improving large portions of it, independant of Smart. Purser might rather surrender three acres, than be involved in litigation.— His doing so is no evidence that lie held the whole as tenant, of another. On the contrary, the lease is evi-*261donee, and strong evidence, if he was actually occupying the residue, that he held that residue in his otvn riarht.— y o For wliy create a tenancy, expressly for a small part, if it was not intended to exclude the rest ? In tiiis point of view, the contract of 1814 was evidence in this suit. But for aught that appears, it might be as effectual on the one side as the other.

But it by no means follows, that because it is evidence, it is conclusive evidence, even as to the three acres; much less, as to the whole tract. The doctrine of estop-pel lias been applied very beneficially to the relation of Landlord and Tenant, whether created by indenture or parol. It lias been properly extended to embrace all cases. It is intended to insure honesty, and protect the landlord against the faithlessness of the tenant. The principle is, that a possession acquired under a particular person, shall not be used to defeat the right of that person. It shall never be turned against him, while the term, according to the express words of its creation, continues $ or after its expiration, while the same possession continues $ as if the tenant holds over, the tenant shall not be permitted to deny the right under which lie'entered, by showing a better right in another, or even himself. Honesty forbids that he should obtain possession witli that view, or after getting it, thus use it. Until therefore the tenant yields back the possession, he shall not be heard in asserting that possession, derived under bis landlord, to be adverse .to him. But the utility and fairness of the rule go no further, For if good faitli forbids the tenant from perverting a possession, gained by another’s permission, into the means of defying the landlord, the latter is equally restrained by it from alleging* that the true owner of the land forfeits it, or passes hiáf title to it, by ignorantly leasing his own land. Having parted with the possession for a certain term, upon a contract that at the end of the term, that possession should, be restored to him, lie can ask such restoration. But h© *262can ask nothing more. He then gets back all he parted from. He can properly claim, that his right shall not be impaired by his tenant. But he cannot claim, that it shall be enlarged by the previous and independent title of the tenant himself. Whenever therefore the term expires, and Ihe relation of landlord and tenant ceases, by the surrender or abandonment of the possession, the parties are set at large again. They then stand upon their original rights — or rather, upon their rights as in fact existing, and not as resting in estoppel. The tenant can then sue the landlord upon his own title. The same reason holds for defending himself upon that title, if he acquires a new possession, independent of his quandam landlord. It will be readily perceived, that when I speak of the surrender of the possession by the tenant, I mean a real and not a colorable departure by the tenant. — not merely going out one day animo revertendi, and coming back the next.

There is however no room for a cavil upon that point here. For Purser leased in 1814, and at the end of that year left the land, and the possession remained vacant for nine years. It is impossible to say, that the possession gained or taken under Smart, had not determined. The estate created by the lease expired, and the estoppel growing out of it expired with it.

Per Curiam. — Let the judgment below be reversed., and a new trifil granted.