#### DEN ex dem. WILLIE J. GILLIAM vs. CHARLES S. MOORE AND JOHN FREEMAN.

The doctrine of estoppel, as between landlord and tenant, does not apply to the latter, when he has been evicted, and subsequently let into possession by a new and distinct title, under another landlord.

Where A. conveyed to B. by deed of mortgage, A. retaining possession of the land, which was afterwards sold under execution for his debt and purchased by C., who entered, and nearly two years subsequent thereto demised the land to A. under a contract for tlie saW>f it: — Held, in a suit by B. against A., that tlie latter was not estopped from disputing the title of the former, and that seven year’s possession, under color of C’s title, was a good defence to the action.

(The cases of Balfour v. Davis, 4 Dev. & Bat. 300; Jordan v. Marsh, 9 Ire. 234; Grandy v. Bailey, 13 Ire. 221, and Freeman v. Heath, Ibid 498, cited and approved.)

This was an action of ejectment brought against Charles S. • Moore, as the tenant in possession, who entered into the common rule, and pleaded not guilty; and afterwards John Freeman was admitted to defend as landlord.

On the trial, before his Honor Judge Manly, at Bertie, on the last Circuit, the facts appeared to be as follows : The land in controversy belonged originally to the defendant Moore, who, on the 30th May, 1837, conveyed it by a deed of mortgage to the lessor of the plaintiff, for the purpose of securing certain debts therein recited. Moore continued in the possession of the land, and becoming indebted to the defendant Freeman, the latter obtained a judgment against him, upon which an execution was issued and levied upon the land, which was sold, and the defendant Freeman became the purchaser, and took a deed therefor. Freeman afterwards had a declaration in ejectment served upon Moore, who was still in possession, and upon Moore’s failing to appear, obtained judgment by default against the casual ejector. A writ of possession was then issued, by force of which Moore was turned out in the latter part of December, 1843, and one Holder was let into the possession of the land by Freeman as his tenant, and so remained until the 1st of January, 1845, when one Mrs. Miller took possession as tenant also of Freeman. In -September, 1845, the defendant Moore and his son, John A. Moore, entered into the possession of the land, under a contract of purchase from the defendant Freeman, and so continued until this action was commenced in the month of May, 1851.

*96It was contended for the lessor of the plaintiff, upon these facts, that Freeman haying been admitted to defend as landlord, could urge no defence which was not open to his tenant Moore; and that Moore was estopped to deny the title which, by his deed of mortgage, he had conveyed to the lessor of the plaintiff, and that consequently his possession was not adverse, so as to bar the lessor’s recovery by seven year’s possession, under color of title.

The defendants contended that there was no estoppel, and that there had been continued adverse possession and color % title bjr the tenants of Freeman, for more than seven years, to wit, from December, 1843, until the commencement of the action in May, 1851; and that the plainttff’s lessor was thereby barred of his eight of recovery. His Honor, the presiding Judge, was of opinion that the defendant Moore was not estopped to deny the lessor’s title; that his possession, together with that of the other tenants oí Freeman, being for more than seven years before the commencement of the action, under the color of Freeman’s title, the right of the lessor of the plaintiff was barred. The jury being-instructed to that effect, returned a verdict for the defendants, upon which judgment having been rendered, the lessor appealed to the Supreme Court.

W. N. H. Smith, for lessor of plaintiff,

contended 1: That the defendant Moore, and the defendant Freeman also (who coming in to defend as landlord is limited to such defence as could be set up by his tenant) are estopped to delay the title of plaintiff’s lessor, and his right of recovery. By the execution of his deed, Moore, continuing in possession became tenant at will to Gilliam, and was in good faith bound to retain and deliver possession to him whenever required to do so. And although eviction by paramount title might excuse him from his obligation to surrender possession, inasmuch as without any fault of his, it had become impossible to do so, yet, when by his repurchase, this impediment was removed, the obligation was renewed, and the estoppel reapplied. (Wiggins v. Reddick, 11 Ire. 380, Grandyy. Bailey, 13 Ire. 221, Freeman v. Heath, Ibid. 498, Ogle v. Vickers, 31 Eng. C. L.R. ITS.)

2. When Moore re-entered into possession of the premises, and *97thus- resumed the relations that subsisted between himself and Gilliam, previous to the interruption of Freeman, the law adjudges the possession to follow the better of the two titles thus concentrated in him. There was consequently no adversary possession as against Gilliam, because he was himself in possession, by virtue of the possession of -his tenant, Moore.

Bragg, contra, argued 1:

That the possession of Moore and his son, under tire contract of sale between them and Freeman, was the possession of Freeman, and enured to his benefit, so as to bar the plaintiff’s lessor in seven years. (Rhodes v. Brown, 2 Dev. 195.)

2. As to estoppel, he cited Jordan v. Marsh, 9 Ire. 234. There was an end of the old possession by Moore and then a coming in of himself and son, under a new contract of purchase, and therefore no estoppel.

3. Could not Freeman recover of Gilliam upon the title ripened by this possession? especially as he had possession by both the Moores. Why then give the plaintiff’s lessor possession in this action?

Battle, J.,

after stating the case as above, proceeded: The proposition that the defendant Freeman, being admitted to defend as landlord, with the defendant Moore, cannot set up any defence, which is forbidden to Moore, is fully established by Balfour v. Davis, 4 Dev. & Bat. Rep. 300, and the other cases referred to by the plaintiff’s counsel.

The other proposition contended for by the counsel, that Moore was estopped to deny the title of the plaintiff’s lessor is neither supported by reason nor authority. It is, in our estimation, directly opposed by the case of Jordan v. Marsh, 9 Ire. Rep. 234. That case, as explained in the subsequent one of Grandy v. Bailey, 13 Ire. Rep. 221, was £i where one of the purchasers at Sheriff’s sale had recovered in ejectment, and no imputation of fraud therein was made, and he was on the eve of taking actual possession under a writ of habere facias, when the tenant took a lease from him. The Court was of opinion that if the tenant had been actually put out of possession by the Sheriff, and had after-wards entered under a new lease, he might have defended such *98new possession under the title of his landlord, against a subsequent ejectment by the other purchaser from the Sheriff; and therefore it was held that he might take alease from him who had recovered in the ejectment, without an actual eviction on a writ of possession — the Court saying, “for what end should he be required to go through the useless form of being put out'of possession, merely to be at the trouble of going back again?’ ’ In Grandly v. Bailey, it is true that the defendant was not allowed to protect herself under the lease which she had taken from the purchaser at the Sheriff’s sale; but it was because she was not on the eve of being turned out by the Sheriff under a writ of ¡possession, and her delivery of the possession to the agent of the purchaser was deemed by the Court to have been colorable merely, and not a bona fide transaction. The change of possession, in the case now before us, is not liable to that objection, because Moore was actually turned out by the Sheriff, after the recovery in ejectment by Freeman, and did not regain the possession, under his contract of purchase, until nearly two years afterwards. But the very recent case of Freeman v. Heath, 13 Ire. Rep. 498, decided at the last Mor-ganton Term, is relied upon by the plaintiff’s counsel as an authority against the principle contended for on behalf of the defendants. If the principle of the present case be the same with that of Jordan v. Marsh, as we have endeavored to show, then the Court which decided Freeman v. Heath did not consider it opposed to that principle; for they refer to Jordan v. Marsh, and point out the distinction between the two cases. Ruffin, Chief Justice, in delivering the opinion of the Court, says, “in an action by a purchaser under execution, against the defendant, the latter is only restrained from denying that he had some title, while a lessee is obliged not only not to deny his lessor’s title, but also to surrender the possession to him, when required after the expiration of the lease.” Now if that distinction be asound one, it must exist between all actual lessees and all constructive or quasi tenants; such, for instance, as mortgagors in possession, who are only tenants by sufferance to their mortgagees — Fuller v. Wadsworth, 2 Ire. Rep. 263, and persons coming in under a contract of purchase, who are mere tenants at will to their vendors. Love v. Edmonston, 1 Ire. Rep. 152. These constructive or quasi tenants cannot, while *99they remain in possession, dispute the title of those under whom they hold, but after their tenancy has ended, and they have been, put out of possession by their quasi landlords, or by any other person acting under the authority of legal process, they may acquire a new title, under which, if they afterwards regain the possession, they may protect themselves. This doctrine is not impugned by whatis said by the Court in the case of Grwyn v. Wilborn, 1 Dev. & Bat. Rep. 319, that if a mortgagor is ousted by a stranger, and regains the possession, he regains it still as the tenant of the mortgagee. So he does if, as in that case, he regains the possession under the former title; but it by no means follows that such is the effect, if he comes in under a new and distinct title. In the latter case we can see no reason why he may not claim adversely to his quondam mortgagee; and why the latter may not be barred by such adverse possession, continued for seven years.

There was no error in the judgment below, and it must be affirmed.

Per Curiam. Judgment affirmed.